Expenses of Individual TCC Judges To Remain Private

Bill C-58, which received royal assent on June 21, 2019 and is now SC 2019, c. 18, contains amendments to the Access to Information Act (AIA) that require quarterly electronic publication of the expenses of TCC judges and certain other federally appointed judges. Earlier versions of the legislation would have disclosed the expenses of individual judges by name, prompting concern over their personal security. However, this concern has now been removed; the final legislation provides for only aggregate disclosures for each court (TCC, FC, etc.).

New provisions of the AIA (mainly sections 90.18 through 90.21) apply to the incidental expenditures, representational allowances, travel allowances, and conference allowances of superior court judges (including TCC judges) other than SCC judges. Within 30 days after the end of the quarter in which any expense from the foregoing categories is incurred, the commissioner for federal judicial affairs is required to publish the following in electronic form:

  • the name of the court,
  • the total amount of expenses reimbursed by that court,
  • the number of judges to whom a reimbursement was made,
  • a detailed description of each class of expense reimbursed,
  • the number of judges who received a reimbursement for each class, and
  • the applicable guidelines.
However, for representational allowances, there is no requirement to publish the name of the court. Similar rules in new sections 90.01 to 90.09 of the AIA apply to SCC judges.

The version of the legislation passed by the House of Commons on June 12, 2017 had provided for disclosure of the expenses of individual judges by name. Two Senate committees held hearings on the bill, and on April 30, 2019 the Senate Standing Committee on Legal and Constitutional Affairs issued a report containing proposed amendments and an observations document summarizing its consultations. The report's amendments provided for the disclosure of expenses only on an aggregate basis, and the final bill reflects this approach.

The concerns with the June 12, 2017 version were set out in the observations document and in an earlier article ("Should Expenses of TCC Judges Be Made Public?" Canadian Tax Focus, May 2019). TCC judges' expenses are by their nature probably higher than those of judges in other courts because the TCC is an itinerant court; that is, the judges of the TCC travel from place to place throughout Canada. TCC judges might be unfairly criticized for incurring expenses that they had to incur to carry out their statutory obligations. The Courts Administration Service closely monitors the expenses of judges and there is little opportunity for judges to abuse the system. If there are concerns about the expenses of the TCC judges, there should be an audit of those expenses, not a report of the expenses of individual judges. Finally, and most importantly, publishing the expenses of individual judges, and thereby effectively disclosing travel patterns, would make them vulnerable to those who have a grievance against a particular TCC judge.

In my view, these amendments have achieved the appropriate balance between ensuring that the public can determine whether its funds are being properly spent and avoiding intrusions into the privacy of individual judges.

Brian Carr
Thorsteinssons LLP, Toronto

Canadian Tax Focus
Volume 9, Number 3, August 2019
©2019, Canadian Tax Foundation