Prothonotary Position - Guide for Candidates

June 2017

A. PROCESS FOR AN APPLICATION FOR APPOINTMENT

Appointments to a prothonotary position with the Federal Court are made by the Governor in Council on the recommendation of the Minister of Justice. Traditionally, the Office of the Chief Justice of the Federal Court has been responsible for the administration of the selection process for these judicial appointments on behalf of the Government. The following process was established in June 2017. This process will be revised as required.

1. EXPRESSION OF INTEREST AND ELIGIBILITY

Qualified lawyers who have at least 10 years' standing at the bar of any province and persons holding provincial or territorial judicial office who wish to be considered for an appointment as a prothonotary of the Federal Court must complete the following:

  1. Application Form - provides the basic data for the subsequent assessment of, or comment on, the candidate. Candidates should ensure that this form is completed in full and in accordance with the instructions provided. All information received will be treated confidentially.

  2. Authorization Form - to obtain a statement of the candidate’s current and past standing with the law societies in which they hold or have held membership.

  3. Background Check Consent Form - A background check will be conducted only if the Minister of Justice intends to nominate the candidate for an appointment to this judicial office following his or her assessment and recommendation. A background check is required prior to any appointment to a public office.

One (1) copy of the completed forms should be sent to:

Executive Director, Judicial Appointments
Office of the Commissioner for Federal Judicial Affairs
99 Metcalfe Street, 8th Floor
Ottawa, Ontario
K1A 1E3
Telephone: (613) 992-9400
Toll free: 1-877-583-4266

Each Application File will be kept on file for a period of two years from the date of receipt. Candidates will be notified when the Application File is received, but will not be notified further unless they are chosen for consideration.


2. PROTHONOTARY APPOINTMENT REVIEWING COMMITTEE

The Minister of Justice will appoint members to the Prothonotary Appointment Reviewing Committee, as required. The Committee will consist of representatives of the Federal Court and the Minister’s office, as well as any other person selected by the Minister of Justice. Shortlisted candidates may be required to participate in an interview, in person or by video conference/Skype.

All Committee proceedings and consultations take place on a confidential basis.


3. ASSESSMENTS AND CONFIDENTIALITY

Consultations in the legal community and/or any other community may be undertaken by the Committee for each candidate.

Professional competence and overall merit are the primary qualifications for an appointment. In this respect, Committee members will consider the Assessment Criteria used for evaluating fitness for a judicial appointment. The references to “judge” in the assessment criteria equally apply to a “prothonotary”. These relate to professional competence and experience, personal characteristics, and potential impediments to the appointment. The Committee may also consider a candidate’s expertise in a certain area of law.

The Committee will assess all candidates and make a recommendation for an appointment. Candidates will not be notified of their assessment. However, candidates who are under consideration may be asked to meet with the Committee at different stages of the process. The results will be kept confidential and solely for the use of the Court and the Minister.

When completing and submitting their application, candidates should understand that if a position does not become available in the two years for which their application will be kept, they may not have to be assessed.

Following receipt of the Committee’s recommendation, the Minister may at his or her discretion seek further information from the Committee on any candidate. On those occasions when a Committee’s advice may be contrary to the information received from other sources by the Minister, the Minister may ask the Committee for a reassessment of the candidate.


4. DURATION OF VALIDITY OF ASSESSMENTS

Candidates will be notified of the date their applications are received. Their applications will be valid for a period of two (2) years from that date. During that time, a candidate will remain on the list of those eligible for appointment by the Government. If a candidate continues to be interested in being considered for an appointment after the two-year expiry date, a new Application Form will need to be submitted during the month preceding the expiry date.


5. APPOINTMENTS

Appointments to a prothonotary position with the Federal Court are made by the Governor in Council on the recommendation of the Minister of Justice.

Before recommending an appointment to Cabinet, the Minister may consult with members of the judiciary and the bar, with his or her appropriate provincial or territorial counterparts, as well as with members of the public.



B. MATTERS TO CONSIDER BEFORE APPLYING FOR AN APPOINTMENT

1. Position Tenure

Prothonotaries are appointed pursuant to the Judges Act, and are subject to many of the same provisions as judges1. Members of the judiciary hold office during good behaviour. An appointment is therefore permanent and terminates only upon attainment of the age for compulsory retirement, which is currently 75, or upon the resignation or removal of the prothonotary from office.

A prothonotary is entitled to annual leave of six weeks.

A prothonotary who has served 15 years in judicial office and whose combined age and number of years in office is not less than 80 has the right to retire with an annuity.

Prothonotaries hold office during good behaviour, and are removable from office only for cause. Complaints made against members of the judiciary are subject to investigation by the Canadian Judicial Council, a body comprised of all federally appointed Chief Justices, Associate Chief Justices of the provinces and Senior Judges of the Territories and presided over by the Chief Justice of Canada. The role and the functions of the Canadian Judicial Council are set out in Part II of the Judges Act.

A prothonotary may be suspended from his or her judicial duties by the Chief Justice of the court pending completion of an inquiry by the Council into the conduct giving rise to a complaint.

Where the Council makes a finding of misconduct, it may make a recommendation to the Minister of Justice for removal from office.

1 Subsection 2.1 (1) of the Judges Act specifies: Subject to subsection (2), sections 26 to 26.3, 34 and 39, paragraphs 40(1)(a) and (b), subsection 40(2), sections 41, 41.2 to 42, 43.1 to 56 and 57, paragraph 60(2)(b), subsections 63(1) and (2) and sections 64 to 66 also apply to a prothonotary of the Federal Court.


2. Remuneration

Salaries

The Constitution Act, 1867 recognizes the principle of the independence of the judiciary by imposing on Parliament, and not on the executive, the duty to fix and provide the salaries, allowances and pensions of superior court judges and prothonotaries. As a consequence, judicial salary levels for all federally appointed judges are prescribed in Part I of the Judges Act. Salaries are adjusted annually on the basis of the lesser of the percentage change in Statistics Canada's Industrial Aggregate Index or 7%.

The adequacy of judicial salaries, pensions and benefits is reviewed every 4 years by the independent Judicial Benefits and Compensation Commission appointed by the Governor in Council. The Commission is required to submit a report with its recommendations to the Minister of Justice which is also tabled in Parliament. The Minister must respond to the report within 6 months after receiving it.

The current judicial salary level for Federal Court Prothonotaries is $252,200 as of April 1, 2017.

Restrictions on Extra-judicial Employment

Prothonotaries must devote themselves exclusively to their judicial duties, and may not engage, directly or indirectly, in any business or occupation, either for themselves or for others. Members of the judiciary may, however, serve as commissioners, arbitrators and mediators where authorized by federal or provincial law. Where they so act, they are not entitled to any additional remuneration, although they are entitled to reimbursement of travelling and other expenses reasonably incurred.

The Judges Act sets out the restrictions on extra-judicial employment in greater detail.

Taxation

The full amount of a prothonotary's contribution to judicial annuities and supplementary benefits is deemed to be contributed to or under a registered pension fund or plan, pursuant to the Judges Act. The entire contribution is therefore deductible in calculating federal income tax.

There could be significant tax implications for a prothonotary's first years in office, arising from the accumulation of income accruing upon the winding up of his or her professional practice and the receipt of his or her salary as a prothonotary. For example, those who practise as sole practitioners or in partnership should consider the tax implications of having to report income on a calendar year rather than on a fiscal year basis; of disposing of an interest in a partnership; and of income received upon the sale of various assets of their practice, such as accounts receivable, work in progress, depreciable and non-depreciable property, and goodwill.

These, together with the Income Tax Act provisions relating to capital gains deductions and tax deferrals, are but some of the factors requiring careful consideration.

Reference should also be made to the Report on the Tax Treatment of Lawyers' Income on their Appointment to the Bench (PDF Version, 42 KB), prepared by the Canada Revenue Agency, which is intended to inform lawyers appointed to the Bench, or who cease to practise their profession as a proprietor or member of a partnership, of the tax implications of these changes.


3. Allowances and Benefits

Allowances

The various allowances described hereafter extend only to actual and reasonable expenses incurred by a prothonotary when performing his or her duties. Except for the allowance, these allowances are not intended to compensate for any additional costs related to such persons as a spouse or a child.

Removal Allowance

Pursuant to the Judges Act, a removal allowance is paid to a person who is appointed a prothonotary and is required to change his or her place of residence to assume judicial functions, and to a prothonotary who is required to change his or her place of residence upon transfer or reassignment.

The major costs which may be reimbursed out of the removal allowance include:

  • Travelling expenses of the prothonotary and the members of his or her family incurred during the course of looking for a new residence and of moving thereto;
  • Transportation and storage of household effects;
  • Costs relating to the sale of the former residence;
  • The cost of cancelling any lease on the former residence;
  • Certain interest charges on the mortgage for the new residence when these are higher than the interest charges on the mortgage for the former residence;
  • Under prescribed circumstances and for a reasonable period of time, the interest on a short-term loan arranged to purchase a new residence pending the sale of the former residence; and
  • For a reasonable period of time while the former residence remains on the market, the cost of maintaining the vacated residence, minus any rent received.

Travel Allowance

Pursuant to the Judges Act, a travel allowance is payable to a prothonotary whom, because of his or her duties, is required to travel outside the immediate vicinity of the place where he or she is by law obliged to reside.

The travel allowance compensates for such costs as transportation, lodging, meals and other actual and reasonable expenses.

Incidental Expenses, Conference, Representational and Northern Allowances

Pursuant to the Judges Act, an allowance for incidental expenditures for each fiscal year is payable to a judge for reasonable incidental expenditures that the fit and proper execution of the office of judge may require. Prothonotaries currently do not receive any incidental allowance; however, the federal government has accepted a recommendation by the Quadrennial Commission that Prothonotaries should receive a non-taxable allowance of $3,000 annually, retroactive to April 1, 2016, to be used for the payment of expenses related to their duties.

Prothonotaries are reimbursed travelling, registration and other actual and reasonable expenses relating to their attendance at conferences, seminars and meetings with respect to the administration of justice. The attendance of a prothonotary must be approved by his or her Chief Justice. In lieu of attending an approved conference, a prothonotary is entitled to be reimbursed the cost of acquiring written or recorded materials distributed for the purposes of any such meeting, conference or seminar.

Benefits

Annuities

Prothonotaries contribute a percentage of their salary towards their pensions. By virtue of the Judges Act, a prothonotary may retire with a pension equivalent to two thirds of the salary annexed to his or her office

  • Upon completion of at least 10 years in office and attainment of the age for retirement (75);
  • Upon completion of at least 15 years in office and a combined age and number of years in office not less than 80;
  • Upon resignation on grounds of ill health;
  • Upon completion of at least 15 years in office and where resignation is in the national interest or for the better administration of justice;

A prorated annuity is payable to a prothonotary who ceases to hold office by reason of having attained the age of retirement (75), but who has held judicial office for less than ten years. An immediate or deferred prorated annuity is also payable to a prothonotary who has attained the age of 55 years, has continued in judicial office for at least 10 years, and who elects early retirement.

These annuities are indexed.

Upon certain conditions, prothonotaries may also apply and receive the Canada Pension Plan retirement pension.

Survivor's Benefits

Gratuity

When a prothonotary dies while in office, a lump sum gratuity equal to one sixth of the prothonotary’s annual salary is payable immediately to his or her survivor (spouse or common-law partner) or estate.

Annuities

Pursuant to the Judges Act, an annuity equal to one third of the prothonotary's salary, or one half of the annuity granted to the prothonotary under the Judges Act, is paid to his or her survivor. In the latter case, the prothonotary may elect to have this annuity increased from one-half to 60% or 75%, through an offsetting reduction in the annuity granted to the prothonotary. A survivor who married the prothonotary or became a common-law partner after he or she ceased to hold office is not eligible for an annuity, unless the prothonotary had previously elected for a reduced annuity as referred to above.

An annuity equal to one fifth of the annuity granted to the survivor is granted to each natural, adopted or stepchild of a prothonotary. If there is no survivor, each child is granted two fifths of the annuity that would have been granted to the survivor. To receive an annuity, a child must be less than 18 years of age or between 18 and 25 years of age and a full-time student substantially without interruption since he or she reached 18 or the judge died, whichever occurred later.

These annuities are indexed.

Insurance

Disability Insurance

Disability insurance as such is not required, since the prothonotary's income is protected against the risk of disability either by obtaining a leave of absence with full salary or by resigning on grounds of ill health with a full pension.

Health Insurance
a) Provincial Health Insurance

Prothonotaries and their dependents are entitled to hospital accommodation, in-hospital and other services, depending on their province of residence.

b) Public Service Health Care Plan

This plan paid by the federal government covers a wide range of health costs not covered by provincial health plans for the benefit of prothonotaries and their dependents. Coverage is also available to retired prothonotaries on an optional basis.

c) Public Service Dental Care Plan

Prothonotaries and their dependents are covered by the government paid dental care plan. Coverage is also available to retired prothonotaries on an optional basis.

Basic and Supplementary Life Insurance - Accidental Death and Dismemberment Insurance - Dependents’ Insurance - Post Retirement Life Insurance - Living Benefit

The following benefits under the Public Service Management Insurance Plan (Judges Plan) are available to prothonotaries appointed after 31 July 2001:

a) Basic Life Insurance

This is compulsory for prothonotaries appointed after 31 July 2001, and provides life insurance equal to twice the adjusted annual salary. Coverage is at the government's expense.

b) Accidental Death and Dismemberment Insurance (AD & D)

The principal sum of AD & D insurance is $250,000. A schedule sets out the benefits payable to the prothonotary or beneficiary following a loss resulting from an accident and in addition to any life insurance payable. The premium is government paid for prothonotaries who opt for this coverage.

c) Dependents' Insurance

This consists of life insurance and AD & D insurance for the prothonotary's dependents - spouse or common-law partner, and unmarried children over 14 days but not yet 21 years old (25 for full-time students) who are not employed on a full-time basis. The premium is also government paid for prothonotaries who opt for this coverage.

d) Supplementary Life Insurance

Prothonotaries can apply for supplementary life insurance equal to their adjusted salary, which brings the total amount of life insurance to three times the adjusted salary while under the age of 66. The amount of supplementary life insurance decreases after age 65. Evidence of insurability satisfactory to the insurer is required for the additional insurance, and prothonotaries are responsible for the premiums.

e) Post Retirement Life Insurance

This is available to prothonotaries entitled to government-paid basic life insurance on their last day in office and who are entitled to receive an immediate continuing pension under the Judges Act. The insurance is equal to the adjusted final salary in the first year of retirement, decreasing to 25% of adjusted salary in the fourth year and thereafter. The government pays the premium for those entitled to this coverage.

f) Living Benefit

This provides the life insured who has a terminal condition with a portion of the life insurance benefit which would be payable to the beneficiary upon the insured's death. This portion of the life insurance benefit is deducted from the amount payable to the beneficiary.

As well, the benefits of the Government Employees Compensation Act apply to a prothonotary who is caused personal injury by an accident arising out of and in the course of his or her judicial duties.

Compensation, within the meaning of the same Act, is payable to the dependents of a prothonotary whose death results from an accident arising out of or in the performance of judicial duties; this benefit is equivalent to the level of benefit available to the dependents of the most senior category of public servants. Compensation at this same level is also payable to the survivors of a prothonotary whose death results from an act of violence unlawfully committed by another person while the prothonotary is performing judicial duties.


4. Professional Development

Prothonotaries are encouraged to take advantage of the many continuing legal education programs which are available. In addition to conferences, seminars and meetings of general benefit to the members of the Court, a number of specialized programs have been developed specifically for judges and prothonotaries.

The responsibility to further their education rests with individual prothonotaries who are encouraged to spend up to 10 sitting days a year on their continuing education.

Major legal education programs and avenues include the following

Canadian Judicial Council

The Council was established under the Judges Act to “promote efficiency and uniformity, and to improve the quality of judicial service in superior courts” in Canada. It consists of the Chief Justices and Associate Chief Justices of all federally appointed courts in Canada, and includes the senior judges of the three territories. The Council is chaired by the Chief Justice of the Supreme Court of Canada. Among the Council's functions are the continuing education of judges and prothonotaries, the development of consensus among council members on issues involving the administration of justice and the handling of complaints against federally appointed judges and prothonotaries.

National Judicial Institute

Created in 1988, the National Judicial Institute (NJI) is a federally and provincially funded non-profit organization committed to continuing legal education. The NJI designs and presents courses for judges and prothonotaries which focus on the three major components of judicial education: substantive law, skills training and social context issues. The Canadian Judicial Council authorizes various seminars provided by the NJI in this respect.

Commissioner for Federal Judicial Affairs

The Commissioner for Federal Judicial Affairs (FJA) has developed and supports a private computer network for the sole and confidential use of federally appointed judges and prothonotaries through its JUDICOM Program. Training sessions are held with judges and prothonotaries throughout Canada for this purpose. In coordination with the NJI, FJA also provides individual courts with computer training.

The FJA also offers English and French language training programs to both federally and provincially appointed judges and prothonotaries designed to improve proficiency in their second official language in the judicial and legal context. These courses are available to both Anglophone and Francophone judges and prothonotaries, and at several levels of proficiency. They are provided through group sessions in various parts of Canada, and reinforced with private courses.

The FJA also administers, on behalf of the Government, the federal judicial appointments process of interest to those who seek an appointment to the Bench, other than prothonotaries.

Canadian Institute for the Administration of Justice

The Canadian Institute for the Administration of Justice (CIAJ) organizes a wide range of conferences and workshops, at which federally appointed judges are authorized to participate.


5. Ethics, Change of Lifestyle and Other Considerations

Anyone considering a judicial appointment should have as much information as possible on what becoming a prothonotary entails, and should enter upon the responsibilities of judicial office only if he or she is fully prepared to accept the substantial changes which it will bring, not just to the prothonotary’s own life, but to the lives of the members of his or her family. Among the factors to consider are moving from one city to another, buying and selling a house, career disruption of a spouse, children changing schools, and other inconveniences. The decision to seek and to accept a prothonotary appointment should be taken only after full consultation with all those who will be intimately affected by the changes it will bring. As well, while training programs are provided to new prothonotaries, and continuing education is available, prothonotaries are by and large on their own.

A reasonably long-term commitment is also required from each prothonotary: generally, prothonotaries cannot retire with a full pension, except on medical grounds, until they have served 15 years in office and the total of their age and years in office equals at least 80, or have completed at least 10 years in office and reached the age of retirement (75).

The independence of the judiciary both isolates the individual prothonotary from former associations to avoid the possibility of conflict of interests, and imposes upon a judge the highest standards in performing the duties and responsibilities of judicial office. It requires that each judge devote himself or herself exclusively to the duties of the judicial office, and not engage in any outside business. The range of activities that are available to a practising lawyer is therefore severely curtailed upon appointment to the bench.

Once appointed, prothonotaries are expected to comport themselves so that no criticism attaches to their office. The prothonotary is not permitted to engage in public debate on any of his or her decisions, and should avoid expressing personal opinions on major social issues which might lead to an apprehension of bias when such issues come to be adjudicated by the courts. When a prothonotary performs his or her duties in a way that falls short of the standards expected of the Bench, or where the personal life of the prothonotary intrudes upon his or her judicial duties, a complaint may be made to the Canadian Judicial Council. The Council has a statutory mandate to investigate all complaints and allegations of misconduct on the part of federally appointed judges and prothonotaries, and to recommend to the Minister of Justice whether there are grounds for removing a judge or a prothonotary from office.

All who aspire to judicial office should be aware that their responsibilities will include not only the fair and just application of the law but the maintenance of the high reputation of the judiciary itself. Candidates should therefore be prepared to make full disclosure of any matter that would reflect upon their ability to perform the functions of judicial office, or upon the credibility and repute of the judiciary as a whole.

The Canadian Judicial Council 1998 publication Ethical Principles for Judges provides additional ethical guidance for federally appointed judges and prothonotaries. Persons considering a judicial appointment are encouraged to refer to this publication as well; it is available on the website of the Canadian Judicial Council under the link "Publications".