Nova Scotia Provincial Judges' Association v. Nova Scotia Attorney General

IN THE SUPREME COURT OF NOVA SCOTIA

Citation: Nova Scotia Provincial Judges' Association v. Nova Scotia (Attorney

General), 2022 NSSC 93

Date: 20220331

Docket: Hfx No. 461108

Registry: Halifax

Between:

The Judges of the Provincial Court and Family Court of Nova Scotia, as

represented by the Nova Scotia Provincial Judges' Association

Applicants

and

The Attorney General of Nova Scotia representing Her Majesty the Queen in Right

of the Province of Nova Scotia and The Governor in Council

Respondents

The Honourable Justice Ann E. Smith

Judge:

Heard:

June 23, 24, 2021, in Halifax, Nova Scotia

Final Written

Submissions:

Applicants: October 12, 2021

Respondents: October 8, 2021

Susan Dawes and Kristen Worbanski, for the Applicants

Jeffrey Waugh and Kevin Kindred, for the Respondents

Counsel:

Page 2

By the Court:

Introduction

On March 7, 2017, the Judges of the Provincial Court and Family Court of

Nova Scotia, as represented by the Nova Scotia Provincial Judges' Association, (the

“Applicants” or the “Judges’ Association”) filed a Notice for Judicial Review,

requesting judicial review of Order-in-Council 2017-24 (the “OIC”) whereby the

Nova Scotia Governor in Council rejected salary recommendations made by the

Nova Scotia Provincial Judges’ Salaries and Benefits Tribunal (the “Tribunal”).

The Tribunal is an independent tri-partite tribunal appointed every three years

whose task is to recommend the salaries and benefits for Judges of the Provincial

Court and Family Court, including the Chief Judge and Associate Chief Judge of

each Court (the “Judges”), in accordance with the process described in the

Provincial Court Act, RSNS 1989, c. 238, as amended, 2016, c.2, ss. 8-14.

On November 18, 2016, the Tribunal completed its report (the “Tribunal

Report”) regarding salary and benefits for the Judges for the period April 1, 2017, to

March 31, 2020.

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On February 2, 2017, the Governor in Council produced the OIC which

confirmed four of the five recommendations of the Tribunal but varied one

recommendation.

Specifically, the Governor in Council varied the Tribunal’s recommendation

that the Judges’ salaries be increased by approximately 9.5% over three years,

(including a 5.45% increase in the first year), to an increase of 1% for fiscal year

2019 to 2020. The OIC states, in part:

In the circumstances, an appropriate increase is 1% for the 2019-20 fiscal year to

approximate the salary adjustments already set for Crown Attorneys, the funding

increase for physicians, and the proposed increases of other Nova Scotians

receiving salaries out of public funds, including members of the Legislative

Assembly, all of whom have had or will have a salary freeze for two years.

The Notice for Judicial Review sets out the following grounds for review:

The Respondents have violated the constitutional principles of judicial

independence as articulated in the common law and entrenched in section 11(d) of

the Canadian Charter of Rights and Freedoms and the preamble and sections 96,

100 and 129 of the Constitution Act, 1867, in that the Governor in Council has:

(a)

failed to articulate a legitimate reason for departing from the Tribunal’s salary

recommendations;

(b) failed to rely upon a reasonable factual foundation in its reasons for rejection;

and

(c)

viewed globally, failed to respect the Tribunal process and ensure that the

purposes of the Tribunal – preserving judicial independence and depoliticizing

the setting of judicial remuneration – have been achieved.

In particular, the Applicants’ plead that the Respondents have:

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(a) failed to engage fully in the Tribunal process in a manner that ensures its effectiveness;

(b) failed to give constitutionally adequate and legitimate reasons for rejecting the salary

recommendations of the Tribunal including, without limiting the generality of the

foregoing:

(i)

failing to respond to specific reasons and articulations of the Tribunal and failing

to deal with the Tribunal’s reasoning and recommendations in a meaningful

way;

(ii) mischaracterizing the reasoning and/or intent of the Tribunal and its salary

recommendations;

(iii) basing its decision concerning the Tribunal’s salary recommendations on

erroneous or unsupported statements of fact;

(iv) basing its decision concerning the Tribunal’s recommendations on alleged facts,

reasons or arguments not advanced before the Tribunal that the Province had

reasonable opportunity and a responsibility to raise at the hearings before the

Tribunal;

(v) reiterating submissions made to and substantively addressed by the Tribunal;

(vi) making unjustified assumptions and/or assertions in its reasons;

(vii) re-weighing factors considered by the Tribunal without justifying the difference

in weight;

(viii) mischaracterizing or misapprehending the jurisdiction or mandate of the

Tribunal and the purpose of the Tribunal process;

(ix) advancing reasons that are not compatible with the common law and the

Constitution in that they are inconsistent with the role and purpose of the

Tribunal process and the role of the executive and/or legislative branches of

Government in that process;

(x) offering reasons which treat judges as civil servants, contrary to relevant

constitutional principles and/or which are designed to protect the position of the

Government in its bargaining with civil servants rather than address the merits

of the recommendations for judges;

(c) failed to respect the Tribunal process such that its purposes have not been achieved. Such

errors by the Respondents include, but are not limited to:

(i)

misconstruing the role, jurisdiction, and mandate of the Tribunal and failing to

participate in the process with the requisite good faith and respect for the

process;

(ii) rendering the process meaningless by its position that the Tribunal was

effectively bound to adhere to the Government’s fiscal plan;

(iii) acting on the basis of political considerations, in order to bolster the

Government’s position in ongoing public section bargaining; and;

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(iv) imposing a greater burden on the judiciary than on civil servants.

Background Information

Prior to 2016, recommendations made by a Nova Scotia salary and benefits

tribunal concerning judicial compensation were binding upon Government. In

September 2013 a Salary and Benefits Tribunal was established to make

recommendations for the period April 1, 2014, to March 31, 2017 (the “2014

Tribunal”). On September 23, 2014, the 2014 Tribunal delivered its report and

binding recommendations. The Tribunal recommended an annual salary of

$231,500 effective April 1, 2014 (up from $222,993), followed by further salary

increases in the years 2015-2016 and 2016 and 2017 based on the percentage

increase, if any, in the Consumer Price Index for the previous calendar year. The

recommendations of the 2014 Tribunal were implemented by the government by

Order in Council signed on December 17, 2015.

On December 14, 2015, three days before the 2014 Tribunal

recommendations were implemented, the government introduced Bill 148, The

Public Services Sustainability (2015) Act (the “PSSA”) which imposed a set wage

package for public sector employees of 0%, 0%, 1%, 1.5% and .5%. The Bill

received Royal Assent on December 18, 2015, and was proclaimed on August 22,

2017.

Page 6

The evidence before the Court disclosed that on December 14, 2015, the then

Premier of Nova Scotia, the Honourable Stephen McNeil, made statements in an

interview aired on the CTV News Atlantic evening news broadcast to the effect that

he had no choice but to implement the 2014 Tribunal recommendations, but that he

would be considering changing the binding nature of the Tribunal process.

In January 2016 the 2017 Tribunal was established. On May 3, 2016, the

Finance Minister introduced Bill 174, The Financial Measures (2016) Act which had

the effect of amending the Provincial Court Act to remove the binding nature of the

Tribunal process.

A copy of the speaking notes of the Honourable Randy Delorey, then Minister

of Finance and Treasury Board when Bill 174 was tabled, were in evidence before

this Court. The speaking notes record, in part:

The Financial Measures (2016) Act includes amendments to the Provincial Court

Act to ensure that the compensation for judges is affordable for Nova Scotians.

Every jurisdiction in Canada has provisions to establish a tribunal to consider

compensation for judges.

Nova Scotia, however, is one of only two jurisdictions were recommendations for

salary and benefits are fully binding on the government. This is not reasonable.

Our judges do challenging and extraordinary work every day. Nova Scotians value

their roles and their commitment; but it is equally important that government

maintain control over public finances, especially in challenging economic times.

Page 7

Bill 174 was passed on May 20, 2016. As a result, the Provincial Court Act

provided that the Governor in Council could vary or reject the Tribunal’s

recommendations.

The Tribunal received extensive written submissions from the parties. The

Tribunal held a hearing on July 28, 2016, where witnesses were called, including

Mr. Ingram, the Director of Policy and Fiscal Planning for the Department of

Finance and Treasury Board.

The Tribunal’s Report was issued on November 18, 2016.

The Tribunal Report was considered by the Governor-in-Council in February

of 2017. Approximately a month before that, the Attorney General provided a

Report and Recommendation (the “R & R”) to the Executive in Council concerning

the Tribunal Report. The R & R was not included in the Record produced by the

Government for this review. The Applicants brought a motion for its disclosure.

Ultimately the Supreme Court of Canada ordered that two components of the R & R

be included in the Record, a section entitled, “Government-wide implications” and

a “Communications Plan”.

Page 8

The OIC was produced by the Governor in Council on February 2, 2017. As

noted above, the Governor in Council substantially varied the Tribunal’s salary

recommendation.

The Evidence before the Court

The evidence before the Court consists of the Affidavit of the Honourable

Judge Burrill sworn March 23, 2018 (the “Burrill Affidavit”) and the Supplemental

Affidavit of Judge Burrill sworn December 23, 2020 (the “Supplemental Burrill

Affidavit)”. Judge Burrill was not cross-examined on his Affidavits.

The Record and the Decision of the Supreme Court of Canada

As noted above, the production of the R & R was the subject of a ruling by

the Supreme Court of Canada in 2020. The initial Record filed by the Respondents

consisted of the Tribunal Report and the OIC. The OIC referenced the R & R, but

it was not included as part of the Record.

In a decision reported at 2018 NSSC 13 (Nova Scotia Provincial Judges’

Association v. Nova Scotia (Attorney General) this Court allowed, in part, a motion

brought by the Judges’ Association for disclosure of the R & R. The Judges’

Association sought a declaration that the R & R be part of the record on judicial

Page 9

review under Civil Procedure Rule 7.10(a). This Court found that portions of the R

& R were protected from disclosure by solicitor-client privilege and that public

interest immunity did not prevent disclosure of the rest of the R & R. In particular,

this Court ruled that a “Communications Plan” which was an appendix to the R & R

should be disclosed. That decision was appealed by the Respondents. The Court of

Appeal upheld those portions of this Court’s decision dealing with the inclusion of

the R & R as part of the Record in a decision reported at 2018 NSCA 83 (Nova

Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of

Nova Scotia). The Court of Appeal’s decision was appealed to the Supreme Court

of Canada.

The Supreme Court’s decision in that appeal (Nova Scotia (Attorney General)

v. Judges of the Provincial and Family Court of Nova Scotia, 2020 SCC 21

(NSPCJA) along with its decision in a companion appeal, British Columbia

(Attorney General) v. Provincial Court Judges’ Association of British Columbia,

2020 SCC 20 (BCPCJA) set out a framework for judicial inspection of a Cabinet

document sought to be disclosed pursuant to Bodner v. Alberta, 2005 SCC 44 (SCC)

(“Bodner”). As is discussed later in this decision, a Bodner review is a limited form

of judicial review of a government’s response to a judicial compensation

commission’s recommendation.

Page 10

In BCPJA, Karakatsanis J., writing for a unanimous Court stated:

[5]

In its judicial independence case law, this Court has consistently sought to strike

a balance between several competing constitutional considerations by establishing a

unique process for setting judicial remuneration, backed up by a focused, yet robust

form of judicial review described in Bodner (cite omitted by this Court). In resolving

this appeal, the rules of evidence and production must be applied in a manner that

reflects the unique features of the limited review described in Bodner, and respects both

judicial independence and the confidentiality of Cabinet decision making.

[6]

For the reasons that follow, where a party seeking Bodner review requests that

the government produce a document relating to Cabinet deliberations, it must first

establish that there is some basis to believe that the document may contain evidence

which tends to show that the government failed to meet one of the requirements

described in Bodner. Only then would the government be required to produce that

document for judicial inspection. If the document does in fact provide some evidence

which tends to show that the government’s response does not comply with the

constitutional requirements, the court can then determine whether its production is

barred by public interest immunity or another rule of evidence invoked by the

government.

[7]

Public interest immunity requires a careful balancing between the competing

public interest in confidentiality and disclosure. Since there will be a strong public

interest in keeping a document concerning Cabinet deliberations confidential, it must be

outweighed by a still stronger public interest to warrant the document’s disclosure. In

the Bodner context, the strength of the public interest in disclosure will often be

dependent on the importance of the document to determining the issues before the court

in the Bodner review.

In BCPCJA, the Supreme Court held that the Judges’ Association did not meet

the threshold necessary to compel production of a Cabinet document for judicial

inspection. The Association did not provide any evidence or point to any

circumstances that suggested that the Cabinet submission at issue indicated that the

government did not meet the standard required by Bodner.

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However, in NSPCJA, the Supreme Court held that, after applying the

BCPCJA framework, the Judge’s Association had met the threshold to compel

production of portions of the R & R.

Writing for a unanimous Court, Karakatsanis J. stated:

[5]

Applying that framework in this appeal, I conclude that there is some basis to

believe that the Attorney General’s report may contain evidence which tends to show

that the government failed to meet a requirement of the Bodner test. The public reasons

given for the government’s decision to depart from the commission’s recommended

increase in judicial remuneration provide some basis to believe that the government may

have relied on improper considerations and may not have respectfully engaged with the

commission process.

[6]

Having inspected the Attorney General’s report, I find that only two

components, the discussion of government-wide implications and the communications

plan, provide some evidence that the government may have failed to meet the Bodner

test. The rest of the report is either protected by solicitor-client privilege or provides

not such evidence, and will not form part of the record.

[7]

Since the discussion of government-wide implications and the communications

plan reflect matters that may have been considered by Cabinet, I turn finally to public

interest immunity, and find that the public interest in these parts of the Attorney

General’s report remaining confidential is outweighed in favour of these parts’

continued confidentiality, they are outweighed by their importance to the court’s

determination of the merits of the application for Bodner review.

[8]

As a result, only components of the Attorney General’s report – the discussion

of government-wide implications and the communications plan – should be produced

as part of the evidence on Bodner review. That said, these excerpts are merely some

evidence for the Supreme Court of Nova Scotia to consider in deciding the merits of the

judicial review of the government’s response.

[Emphasis added]

Karakatsanis J. noted (para. 36) that the Judges’ Association in the within case

plead that the government’s reasons failed to explain the choice to depart

significantly from the Tribunal’s recommendation of an 8.9 percent increase in

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judicial salary over three years, which aimed to bring judges’ salaries more in line

with salaries in other provinces and that the government’s reasons do not justify its

decision to limit the increase to one percent in the last year of the triennial cycle.

Also noted by Karakatsanis J. (para. 37) was that the government’s reasons:

…repeatedly criticize the commission process and the recommendations in strong

terms. The reasons contend that the commission proceeded in a “results-oriented and

formulaic manner to achieve an outcome”, adding that there was “no rational basis for

its conclusion” (citation omitted). The reasons also criticize the commission’s reliance

on an “adversarial interest arbitration” model drawn based on collective bargaining,

warning that, “as a consequence”, “public confidence in the actual and apparent

independence, objectivity and effectiveness [of the commission] could be called into

question”.

After stating that the issue of whether the Government’s reasons, in the

broader context of this case, supplied some basis to believe that the R & R may

contain evidence that tends to show that the Government failed to comply with one

of its constitutional requirements in responding to the commission’s

recommendations, Karakatsanis J. stated (para 41):

It is open to the respondents to rely on the government’s reasons to argue that the

government did not take sufficient account of the distinctive nature of judicial office in

concluding that judicial salaries should increase only in line with the rest of the public

sector. While across-the-board restraints on increases in salaries could be found to be

rational, this Court has cautioned that “judicial independence can be threatened by

measures which treat judges…identically to other persons paid from the public purse”:

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,

[1997] 3 S.C.R. 3, at paras. 158 and 184. Similarly, although this Court accepted in

Bodner that comparisons with the salaries of civil servants could be appropriate, this

Court also warned that the government’s response must always take into account the

distinctive nature of judicial office: Bodner, at paras. 26, 75 and 123-26.

[Emphasis that of Karakatsanis, J]

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In determining that the R & R does in fact provide some evidence which tends

to show that the government’s response does not comply with the requirements set

out in Bodner, Karakatsanis J. referred to the “government-wide implications”

section of the R & R where it is acknowledged that the Tribunal’s role is unique

owing to judicial independence but adds that “any salary increase provided to any

group may have impacts on current labour negotiations for Government”.

Karakatsanis J also referred to the content of the Communications Plan:

[51] ….The communications plan does not provide any advice or recommendations,

but rather identifies the “communications challenges” that would result from accepting,

rejecting or varying the commission’s recommendations. It was put before Cabinet for

its consideration in determining the government’s response to the commission’s

recommendations. The communications plan sets out the bases on which the decision

to accept or vary the commission’s recommendations could be criticized, as well as

related political considerations.

[52] If the government were to accept the recommendations, the communications

plan warns that the salary increase may not be acceptable to the public. The plan

cautions that if the government accepts the recommendations, the public may question

why the government amended the legislation to make the commission’s

recommendations non-binding, if the government is not prepared to depart from them.

Finally, the plan suggests that public sector unions may use the salary increase to

“bolster [their] case for higher wages” because the recommended increase is higher than

that for public sector employees more generally.

[53] The communications plan warns that if the government rejects or varies the

recommendations, as it ultimately did, the Judges of the Provincial Court and Family

Court will likely apply for judicial review. The plan explains that even so, the public

will likely see the government as “firm and consistent on finances and wages for

individuals supported by taxpayers” and that public sector unions will not be able to use

the salary increase in support of their case for higher wages.

Karakatsanis J further explained why she concluded that the communications

plan and the “government-wide implications” section of the R & R provided some

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basis to support the Judges’ Association’s contention that the government’s response

to the Tribunal’s recommendations fell short of its constitutional requirements as

follows:

[54] …In particular, the suggestion that if the government accepts the commission’s

recommendations, it will be criticized for not availing itself of the option given to it by

the Nova Scotia legislature to vary or reject the commission’s recommendations, is

hardly a rational basis for departing from those circumstances. It would undermine the

legitimacy of the government’s response if Cabinet relied on those considerations.

Whether it did so will be a matter for the Supreme Court of Nova Scotia to decide on

the merits.

[Emphasis added]

Karakatsanis J. cautioned that the government is owed due deference by a

reviewing Court owing to its “unique position and accumulated expertise and its

constitutional responsibility for management of the province’s financial affairs”,

quoting from Bodner (para. 30). However, she added this caveat:

[56]

But it is far from clear that the government can depart from the commission’s

recommendations simply because it fears that accepting them would have a detrimental

impact on public sector labour negotiations. In Bodner, at para. 160, this Court described

the Quebec government’s response to a similar commission’s recommendations in these

terms:

After the [commission] submitted its report, the [g]overnment’s perspective

and focus remained the same. Its position is tainted by a refusal to consider

the issues relating to judicial compensation on their merits and a desire to

keep them within the general parameters of its public sector labour relations

policy. The [g]overnment did not seek to consider what should be the

appropriate level of compensation for judges, as its primary concerns were to

avoid raising expectations in other parts of the public sector and to safeguard

the traditional structure of its pay scales.

[Emphasis added]

Page 15

Karakatsanis J concluded that public interest immunity did not bar the

production of the government-wide implications and communications plan as part

of the Record. After stating that several of the factors identified in Carey v. Ontario,

[1986] 2 S.C.R. 637 weighed in favour of those parts of remaining confidential, she

concluded that “the exclusion of these components of the Attorney General’s report

from the record would impact the reviewing court’s ability to determine the merits

of the Bodner review”. (para. 69).

The “Government-Wide Implications” Section of the R & R

The “Government-Wide Implications section of the R & R is brief. It reads

as follows:

The nature of the Tribunal’s decision is unique because of the independence of the

judiciary as (sic) separate branch of government. However, any salary increases

provided to any group may have impacts on current labour negotiations for

Government.

[Emphasis added]

The “Communications Plan” Section of the R & R

The “Communications Plan” is a three and one-half page document prepared

by the Government’s Communication Director. It is dated December 12, 2016. This

Plan provides, in part, as follows:

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Narrative: Judges do challenging and important work every day. They get paid

well to do a difficult job. The Supreme Court of Canada has been clear that judicial

salaries are not to be tied to other public service salaries and Nova Scotia judges

are among the lowest paid in the country. That’s why the tribunal recommended a

wage increase.

Background/Context: Executive Council is being asked to either accept, vary or

reject the recommendations of the Provincial Court Judges Salaries and Benefits

Tribunal. It is an independent tribunal. The Tribunal recommends a salary increase

of 5.5 percent in the first year, followed by increases in the second and third year

tied to CPI. The raises, if accepted, would take effect on April 1, 2017 and run

through to March 31, 2020.

The Tribunal has set a provincial judge’s 2017-18 base salary at $249,021. There

are also improvements to pension and health benefits.

The proposed raise recommended by the Tribunal exceeds the public-sector wage

settlement plan. There will be a communications challenge if the Governor in

Council accepts the recommendation because it exceeds the wage pattern for public

sector employees set out by government.

A section of the Communications Plan sets out “Stakeholder/Key Audience

Analysis”. The “public reaction” stakeholder analysis to accepting the Tribunal’s

salary recommendation is noted to be “neutral to positive”. The following analysis

is provided:

An increase may meet with criticism. Raises will be seen as a large increase by

many in the workforce who are not getting raises or do not have pensions.

If government accepts the Tribunal’s recommendations, members of the public may

wonder why government enacted legislation to control salary increases for judges

in the first place.

The public will also question why judges would get a raise if government isn’t

prepared to negotiate higher salaries with teachers and civil servants.

…

Rejecting or varying the recommendation would be viewed as government being

firm and consistent on finances and wages for individuals supported by taxpayers.

Page 17

The Communication Plans states that the reaction of court workers and other

civil servants to the Tribunal Recommendations would be “negative, if Tribunal

recommendations are accepted” and “positive, if government varies the

recommendation to be in line with public sector wage pattern”. The analysis in

support of this stakeholder/key audience analysis is as follows:

Although judges are distinct from other civil servants, their salaries are paid by the

taxpayer. Other court workers, who work closely with judges, will not see a raise

or a raise that is lower than the judiciary.

The proposed raise for judges exceeds provincial wage settlements or public sector

wage settlements.

[Emphasis added]

The possible effect on public sector unions is noted in the Communications

Plan to be positive, if the Tribunal recommendations are accepted, but negative or

neutral if “government varies the recommendation to be in line with public sector

wage pattern”. The analysis provided reads as follows:

Public sector unions are being asked to accept no increase for the first two years of

a four year contract, followed by two years with minimal increase below the cost

of living.

Government is already involved in challenging labour negotiations with teachers

and civil servants and has been clear that the pattern for wage settlements needs to

change. The union may use this tribunal decision to bolster its case for higher

wages.

If government varies the recommendation to bring it in line with the public sector

wage pattern, unions won’t be able use it (sic) an argument for higher settlement.

[Emphasis added]

Page 18

Under the heading “Key Messages”, the Communications reports sets out

“key messages” if the Tribunal’s recommendations are rejected, varied or accepted:

Key Messages:

Recommendation rejected or varied:



Judges deserve to be paid well, but the salary increases

recommended by the tribunal are simply unaffordable.



We respect the independence of the judiciary, but every Nova

Scotian receiving a salary paid from the public purse is being asked to

accept less. We all have a part to play.



Judges do challenging and extraordinary work every day. And they

are paid well. They themselves acknowledged to the Tribunal that they

were among the 1 per cent of top salary earners in our province.

Recommendations Accepted:



Judges do challenging and important work every day and they are

well paid. The Supreme Court of Canada has set the bar high for judicial

compensation. They’ve said judges’ salaries can’t be tied to other public

sector salaries.



Government put a strong case forward to the tribunal about what it

can afford; but at the end of the day salaries for Nova Scotia judges are

still well below the national average. This is part of what the independent

Tribunal considered when making its decision.



Ultimately, we’d like to set a salary that is affordable and in line

with the rest of the public sector, but even with the legislation we put in

place, not accepting the tribunal’s recommendations will likely be

challenged in court at a significant cost to taxpayers.

Under the heading “Issues” “salary increase in a time of restraint”, “ongoing

labour negotiations” and “ignoring the government’s own legislation” are addressed

and the following stated:

Salary increase in a time of restraint: In a time of restraint, many Nova Scotians

will be critical of significant salary increases for judges. The raise to judges

exceeds provincial wage settlement or public sector wage settlements. In the public

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hearing, the judiciary itself acknowledged their members were among the top one

per cent of salary earners in the province.

Ongoing labour negotiations: Eyes will be on this decision, given that the

province is in the middle of labour negotiations with teachers and civil servants.

Much of the focus is on government holding to its wage pattern.

Ignoring the government’s own legislation: This spring, the government passed

legislation giving itself authority to accept, vary or reject the recommendations of

the Tribunal. This was done because the Tribunal’s recommendations were binding

on government and the province felt it needed authority to manage finances in a

time of restraint. There was also an issue of accountability. The last Tribunal

recommended a 3.8 per cent raise, plus CPI for each of the next two years. The

government will be open for criticism for enacting legislation to improve its

accountability and then refusing to act on its new authority.

The Communications Plan also contains a heading “Links to Government

Priorities, Departments and/or Agencies”. Under this heading, the following is

stated:

Links to Government Priorities, Departments, and/or Agencies: Government

is very focused on fiscal responsibility and sustainability. A wage pattern that Nova

Scotians can afford is a key part of this and government is in negotiations with

teachers and civil servants. The Public Service Commission and negotiations with

these groups will be impacted by this decision.

The Burrill Affidavit – Evidence Before the Court

In his Affidavit, sworn March 23, 2018, the Honourable Judge James Burrill,

a judge of the Provincial Court of Nova Scotia since his appointment in 2003, said

as follows:

On February 9, 2017, I listened to a radio broadcast on CBC Radio of a media

scrum outside of Cabinet and heard the Premier state that the Tribunal’s salary

recommendation was rejected because the Tribunal had not looked at the totality of

judges’ compensation, but only at salary.

Page 20

Judge Burrill goes on to state in his Affidavit that he obtained a copy of an

audio recording of the February 9, 2017, media scrum from the Court’s

Communications Director which was provided to her by a reporter with CBC Nova

Scotia. Judge Burrill states that he reviewed a copy of a transcript of the media

scrum in question and believes it to accurately reflect the recorded exchange and the

statements of the Premier. Counsel for the Respondents did not dispute the accuracy

of the transcript. The transcript includes the following exchanges between the

Premier and reporters:

Jean Laroche (CBC) – On the judges’ pay, normally that’s an independent

process. But you’ve, I guess, trumped whatever they wanted. Why?

Premier – They looked at one aspect of compensation with salaries. When you

look at the entire compensation package for the Judiciary in our province, they are

treated fairly. That compensation should reflect the province’s ability to pay and it

should be in line with every other Nova Scotian when it comes to what they can

expect for increases.

Jean – But our judges are among the lowest paid in the country?

Premier – When you look at salary. But when you look at other compensation

packages, that is not the case. You would also look at cost of living in other

Canadian cities and it’s not the same as it is there. So, if they want to go down, you

know, when you look at it as totality of the compensation package, they’re being

treated fairly.

Brian Flinn (AIINS) – Should judges lose their public service award?

Premier – They’re being treated fairly. As we go through this process, as you

know, when we came in, it was all being done at arms-length from government,

they weren’t being compensated the same as every other jurisdiction. We’re not

looking at the totality of their investment, they strictly just looked at salary. I

believe all of that should be part of that conversation, absolutely.

Page 21

The transcript also contains the following response of the Premier when asked

about the Government’s “labour file” and its use by justice department lawyers and

possible advice from outside government:

Premier - I’ve used, when I look at all of these files, it’s not unique to any one

particular file. When I look at the labour file, I don’t look at one specifically, we’ve

looked at the totality of the labour file. I haven’t treated judges any differently than

I’ve treated doctors, and I haven’t treated doctors any differently than I’m treating

teachers, and I haven’t treated teachers any differently than I’m treating health-care

workers.

Brian Flynn- Right, but because there is a tribunal, you would have to look

specifically how to proceed with dealing with the tribunal, I would guess? So

specific advice on..

Premier – The tribunal, we dealt with the tribunal issue, it was binding when we

came into power. We made recommendations to say it was not binding and we’ve

moved forward on our recommendation, on our decision.

[Emphasis added]

Issues

The Court identifies the issues for determination as follows:

1. What is the legal test to be applied in reviewing the Government’s response

to the recommendations of the Tribunal?

2. In applying the legal test:

(a)

(b)

(c)

Has the Government provided a constitutionally adequate and legitimate

reason for varying the Tribunal’s recommendations?

Do the Government’s reasons rely on a reasonable factual foundation for

varying the Tribunal’s salary recommendation?

Viewed globally, has the Tribunal process been respected and have the

purposes of the Tribunal – preserving judicial independence and depoliticizing

the setting of judicial remuneration – been achieved?

3. In the event that this Court finds that any of the three issues above is

answered in the negative, what remedy should the Court grant?

Page 22

Before discussing each issue, the Court will review the mandate of the

Tribunal, including the statutory factors it must consider when making a

recommendation for judicial compensation, the submissions it received from the

parties, its report and the Government’s reasons for rejecting the Tribunal’s salary

recommendation.

The Mandate of the Tribunal

The relevant provisions of the Provincial Court Act which delineate the duties

and mandate of the Tribunal as well as the factors the Tribunal must consider in

making recommendations about judicial remuneration are as follows:

Duties of tribunal

21E (1) A tribunal shall inquire into and prepare a report containing recommendations with

respect to

(a)

the appropriate level of salaries to be paid to judges of the Provincial Court and

the Family Court, including the chief judge and associate chief judge of each

court;

(b) the appropriate level of per diem payments, or payments for part of a day, made

to judges for presiding in the Provincial Court or the Family Court where those

judges are not receiving salaries;

(c)

the appropriate vacation and sick-leave benefits to be provided to judges of the

Provincial Court and the Family Court;

(d) pension benefits and increases thereto in respect of increases in the cost of

living, long-term disability benefits or salary continuation, life insurance and

health and dental benefits for judges of the Provincial Court and the Family

Court and the respective contributions of the Province and the judges for such

benefits; and

(e)

other non-discretionary benefits for judges of the Provincial Court and the

Family Court.

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(2) Where there is a dispute as to whether a benefit referred to in clause (e) of subsection (1)

is a non-discretionary benefit, the Minister or the Association may, within thirty days of

receipt of the report, appeal to the Nova Scotia Court of Appeal to have the question

determined.

(3) When making recommendations pursuant to this Section, a tribunal shall take into

consideration the following:

(a)

(b) the need to maintain the independence of the judiciary;

(c) the need to attract excellent candidates for appointment as judges;

(d) the unique nature of the judges’ role;

the constitutional law of Canada;

(e)

the manner in which salaries and benefits paid to judges in the Province

compares to judicial compensation packages in other jurisdictions in Canada,

including the federal jurisdiction, having regard to the differences between those

jurisdictions;

(f)

the provision of fair and reasonable compensation for judges in light of

prevailing economic conditions in the Province and the overall state of the

Provincial economy;

(g) the adequacy of judges’ salaries having regard to the cost of living and the

growth or decline in real per capita income in the Province;

(h) the relevant submissions made to the tribunal;

(i)

(j)

the nature of the jurisdiction and responsibility of the court; and

other such factors as the tribunal considers relevant to the matters in issue.

The Act requires that the Tribunal report be forwarded to the Governor in

Council, and dealt with as follows:

Duties of Governor in Council

21K (1) Within forty-five days of receipt of the report prepared by a tribunal pursuant to

subsection (1) of Section 21E, the Minister shall forward the report to the Governor in

Council.

(2) The Governor in Council shall, without delay, confirm, vary or reject each of the

recommendations contained in the report referred to in subsection (1).

(3) Upon varying or rejecting the tribunal’s recommendations in accordance with subsection

(2), the Governor in Council shall provide reasons for so doing to both the tribunal and the

Association.

Page 24

(4) The Governor in Council shall, without delay, cause the confirmed and varied

recommendations to be implemented, and the recommendations have the same force and

effect as if enacted by the Legislature once implemented and are in substitution of any

existing legislation relating to those matters. 2016, c. 2, s. 9.

The Submissions of the Judges’ Association to the Tribunal

The Judge’s Association provided lengthy (65 page) submissions to the

Tribunal. The Association provided the Tribunal with its analysis of the application

of each Section 21E(3) factor. The Summary of its submission to the Tribunal reads

as follows:

Consistent with the Association’s position before past tribunals, it is not advocating

a specific salary amount. Instead, the Association has provided submissions with

respect to each of the factors this Tribunal is required to consider pursuant to

Section 21E(3) of the PCA (Provincial Court Act).

It is the Association’s position that a consideration of those factors lead to the

inevitable conclusion that the judges of Nova Scotia’s Provincial and Family Courts

should receive an increase to their existing salaries.

Without limiting the foregoing, important factors in favour of the Association’s

position are: (1) that Nova Scotia’s provincial judges are constitutional (sic) barred

from negotiating their salaries; (2) that Nova Scotia’s provincial judges are

statutorily barred from earning income from endeavours outside their office; (3) the

need to attract excellent candidates when provincial judges make almost

$80,000.00 less than federally appointed judges; and (4) that Nova Scotia’s

provincial judges are next to the lowest paid provincial judges in the country and

their salary for 2015 – 2016 is $21,829 below the national average.

Given the Province’s current financial stability coupled with indicators of strong

future economic performance, there are no compelling reasons that Nova Scotia’s

provincial judges should be amongst the lowest paid provincial judges in Canada.

It is respectfully submitted that this Tribunal should set the provincial judges’

salaries at a level that will meaningfully recognize the above-noted factors.

The Minister’s Submissions to the Tribunal

Page 25

The Minister of Justice provided lengthy (34 page) submissions to the

Tribunal on behalf of the Government, which included the Minister’s review of each

Section 21E(3) factor. The bottom line of the Minister’s position with respect to

judicial salaries was that a consideration of the Section 21E(3) factors supported an

award consistent with the government’s public service wage mandate.

The Minister’s conclusion to the government’s submissions, state in part, as

follows:

The Minister specifically acknowledges that the Tribunal is not bound by the fiscal

plan of the government. It is of course the case that the wage mandate of the

government, and the zero percent increases to be levied on most of the public

service, is not of particular concern to the Tribunal in and of itself. Neither the

fiscal plan nor the wage mandate even carry the status of a relevant factor under the

statute. The Minister appreciates that the constitutional obligations to maintain

judicial independence remain at all times paramount for the Tribunal. Nonetheless,

the Tribunal is to give full consideration to all of the relevant information and arrive

at a principled determination of the salary appropriate to Provincial and Family

Court Judges for 2017 – 2020. In so doing, the Tribunal cannot ignore the reality

of the restraints placed on others in the community served by the Judges, as an

indicator of the economic circumstances of the province, as the foundation to the

relatively positive fiscal forecast, and as a reflection of the high pedestal upon

which Judges presently sit.

….

The consideration of the constitutional and legislative factors by this Tribunal

ensures an independent process which provides crucial support for the

independence of our judiciary. The executive cannot and will not summarily

dismiss the recommendations made by this Tribunal.

Those recommendations will not be taken lightly, rather the statements and

considerations of this Tribunal will be given the serious consideration they are due,

aware that this is necessary to support judicial independence. At the end of the day,

it is the government who is responsible as stated under the Finance Act for prudent

fiscal management taking into consideration the impact on Nova Scotia both now

and in future years. The recent amendments to the Provincial Court Act reflect that

Page 26

it is the government who has the responsibility for all expenditures from the public

purse, including the payment of judicial salaries. In accordance with the

requirements of the Finance Act, the decision as to the salaries of the provincial and

family court judges will be made transparently to the public, and the government is

responsible for the decision.

The Minister has reviewed the factors of Section 21E(3) and the information

available to assess the judicial compensation package against the necessary

financial security of the judges. It is the Minister’s position that while the current

salary and benefits arguably satisfy the requirements of judicial independence, an

award consistent with the public service wage mandate would be appropriate in all

of the circumstances.

The Submissions of the Judges’ Association in Reply

In its reply submissions to the Government’s submissions, the Judges

Association provided the following overview of its response:

Overview

The purpose of the JCC process, as observed by Chief Justice Lamer in Bodner, is

to “depoliticize” the relationship between the government and the judiciary by

changing the process for determining judicial remuneration.

While the Province’s Submission of June 30, 2016, to coin a term, is “talking the

talk” by remarking on the Province’s engagement and respect for the JCC process,

by any substantive measure the Province is not “walking the walk”.

Considered at its core, the Province’s position before this Tribunal is aimed at

carrying out the Province’s political agenda to limit public sector wage settlements.

Repeatedly, the Province’s submission emphasizes its responsibility for the

expenditure of public funds and asserts that, in order to maintain the upward trend

of the Nova Scotian economy, fiscal restraint of judicial salaries is necessary to

ensure the continued improvement.

The Province argues that Nova Scotia provincial judges already earn high incomes

and that, in the interest of equity, the judges must be subjected to the same fiscal

restraints in determining their financial compensation as it says it intends to apply

to the entire public sector. The Government’s mandate is framed as doing equity

by treating all public sector “employees” in a like manner.

In the Association’s view, the Province’s position is fundamentally flawed for three

reasons which are as follows:

Page 27

(a) The Province’s approach fails to meaningfully examine whether the

Nova Scotia provincial judges’ salaries are fair and reasonable, as

required by the PCA.

(b) The Province’s approach attempts to insert a political mandate into

what should be a non-political process and is not doing equity by

treating all parties equally.

(c) The Province’s Submissions does not give due consideration to the

state of Nova Scotia’s economy.

The Minister also provided further Reply Submissions. In the conclusion to

these reply submissions, the Minister states, in part:

The Tribunal exists as a substitute for collective bargaining or other forms of

bargaining but is not to become tantamount to interest arbitration. The intent is to

depoliticize the process, not to create a new forum for adversarial wrangling. The

process is not for the benefit of the judges nor does it guarantee high salaries or

uniformity among judges. The process is not based on historical precedent nor

further guestimates. Comparisons to other judicial salaries must take into account

the basis for those salaries and the application of any differences. Equity among

judges is not the purpose nor goal of the process. Judicial independence should be

measured within the community served and comparisons to other jurisdictions do

little to evaluate the public perception of the people actually served by the

Provincial and Family Courts of Nova Scotia.

Judges are not civil servants. However, within Nova Scotia, public servants

represent a substantial proportion of the working public. Information on wage

earners in the Province is relevant to the determination of the Tribunal, pertinent to

the constitutional law, maintaining the independence of the judiciary, reflective of

the unique nature of the position and as a measure of the economy. As employer

of civil servants and pay master to public servants, the government will continue to

provide relevant information without attempting to equate judges to non-judges.

…

Having considered the factors on their merits, the Minister is left with no

discernible objective rationale, from a principled foundation, for a salary increase.

Furthermore, as the Association notes at paragraph 15, there is no “magic number”

to guarantee judicial independence. The reality is that a salary figure cannot be

precisely determined from the myriad factors and the information pertinent to those

factors. Accordingly, the Minister is attempting to find the fair and reasonable

balance. The Minister does not agree with the Association submissions that

fairness, or equity, is to be assessed solely in relation to other judges. In keeping

with the wage mandate applicable to thousands of other Nova Scotia citizens, the

Page 28

proposed 1% increase, effective April 1, 2019, is put forward as an equitable

outcome more in keeping with the constitutional law. This is not based on any

concept of “comparators” as one would typically use the term in compensation

determinations and negotiations. Rather, it remains an equitable standard

applicable in the current circumstances given the population served. The Minister

also strenuously reminds the Tribunal that reliance on bare salary figures from other

jurisdictions and any kind of averaging approach does not respect the purpose of

the process nor the statutory direction of the Act. The “magic number” will not

appear based on a national average, a Maritime average, an Atlantic average, or any

other approach which amounts to tossing numbers into the blender.

The Tribunal Report

The Record before this Court includes the Tribunal’s Report. The Report

starts with an introduction as to the Tribunal’s general mandate, a review of the

written and oral submissions it received and the identification of the counsel who

represented the Judges’ Association and the Government. The Tribunal notes that

although the Judges’ Association and the Government were in general agreement

with respect to the way pension and benefits should be addressed, they were “far

apart on the salaries question”. The Tribunal then turned to a review of its statutory

mandate and the statutory factors it must review in coming to its recommendations

on judicial remuneration, as set out in Section 21E(3).

The Tribunal noted that the Section 21E(3) factors provided a “plethora of

detail” in aiding it and the parties to focus on the relevant considerations. It noted,

however, that factor 21(E)(3)(j) was clearly “very open-ended”, i.e., “other such

factors as the tribunal considers relevant”, and that the factors are not weighted

Page 29

which it said, “can pull on some issues in different, if not to say conflicting,

directions”.

The Tribunal saw its task as “arriv[ing] at a sensible, rational balance among

the Section 21E(3) factors in relation to every relevant issue – in this context,

salaries”.

The Tribunal noted that it undertook its task with what it referred to as the

following “stern admonitions” of the Supreme Court of Canada in Bodner at para.

17:

“The commission must objectively consider the submissions of all parties and any

relevant factors identified in the enabling statute and regulations.

Its

recommendations must result from a fair and objective hearing. Its report must

explain and justify its position.”

The Tribunal Report sets out at length its synopsis of the main submissions of

the parties on each Section 21E(3) factor.

The Tribunal’s analysis with respect to the Section 21E(3)(a) factor, “the

constitutional law of Canada” is as follows:

The Government acts in relation to this factor within the framework of the division

of powers among the branches of the state expanded upon in the immediately

preceding paragraph. The Association highlighted judicial comments which

incorporated the idea that “the judiciary has developed from a dispute resolution

mechanism to a significant social institution with an important constitutional

role…”. The Tribunal believes that it is worthwhile to emphasize certain aspects

of this latter point. Canadian courts, through the mechanisms of constitutional and

Page 30

administrative law, have the authority to ensure that legislatures and governments

keep within the bounds of their respective spheres of authority. In some countries,

this role or function is deemed of such importance that it cannot be entrusted to the

ordinary courts of the land, but must be reserved to specialized constitutional

courts. In Canada we trust our judges to do this work in the course of ordinary

litigation, where an allegation arises that a legislature or a government authority

has stepped outside the bounds of its authority. While this role is largely within the

powers of superior courts which are clothed by judicature acts with inherent

jurisdiction, even provincial courts exercise this rather awesome authority. Thus it

is, that a judge in the Provincial Court in this Province is a “court of competent

jurisdiction” for purposes of granting remedies under section 24 of the Charter of

Rights and Freedoms when conducting a criminal trial. That judge, in those

seemingly ordinary circumstances, can declare that a peace officer, a correctional

officer or any other agent of the government has contravened the Charter and must

be brought into line with the Constitution. Public servants and civil servants in this

country can thus have their actions scrutinized in the ordinary courts to see that they

pass constitutional muster. This is an important reason why Canadian judges,

including Nova Scotia’s Provincial Court judges, are not simply “civil servants”,

but rather have a special status under the Constitution in the matter of regulating

the conduct of public servants, from the very highest to the lowest in the

governmental hierarchy. Such considerations are not to be treated lightly as aspects

of “the constitutional law of Canada” for purposes of section 21E(3)(a) of the

Provincial Court Act.

[Emphasis added]

The Tribunal’s analyzed the Section 21E(3)(b) factor, “the need to maintain

the independence of the judiciary” as follows:

As mentioned above…the Association rightly stressed the Supreme Court of

Canada’s observation that “…public confidence in the independence of the

judiciary would be undermined if judges were paid at such a low rate that they could

be perceived as susceptible to political pressure through economic

manipulation…”. The Government quite correctly did not derogate from this

proposition, but perceptively noted that there are both individual and institutional

aspects to protecting judicial independence. Both of the parties acknowledged that

the current salary level for Nova Scotia Provincial Court judges is not so low as to

constitute a real or perceived invitation to bribery or corruption, and the Tribunal

is in accord. However, it is to be noted that some Nova Scotia Provincial Court

judges have been lured to the Supreme Court of Nova Scotia over the years, and

one cannot but be sensitive in this context to the federal provincial salary

discrepancy, a topic which will be discussed below.

Page 31

The Tribunal’s analysis with respect to the Section 21E(3)(c) factor, “the need

to attract excellent candidates for appointment as judges” is as follows:

The Association noted that the most recent appointments to the Provincial bench

are “…excellent and supremely qualified appointments”. The Government

apparently agreed through its assertion that the recent provincial appointments

“stack up very well” in comparison to newest federal appointees to the Supreme

Court of Nova Scotia, and discounted any problem, perceived or real, in relation to

the federal-provincial judicial salary gap. The Tribunal would observe in this

context that the pool of candidates, as the Association states, is the same for both

federal and provincial benches. This pool is well-educated, professionally trained

and highly experienced group of legal practitioners. The Government asserted in

this context that current Provincial Court judges’ salaries put our judges in the top

1% of earners in the Province. But quite frankly, many members of the pool of

qualified candidates find themselves in that elite company as well. By national

standards, the threshold to enter the top 1% of income earners in Nova Scotia is

shockingly low. Thus, the top 1% of income earners as a negative benchmark for

not raising Provincial Court judges’ salaries is not very helpful in relation to the

question of whether current salaries will continue to be adequate to attract excellent

candidates as one looks forward to the next three years, which are the scope of this

Tribunal’s mandate.

The Tribunal then turned to the Section 21E(3)(d) factor, the “unique nature

of the judges’ role”:

In addition to the Tribunal’s remarks above concerning the unique constitutional

role played by judges as one of the three branches of the modern democratic state,

the Tribunal believes it is critical under this rubric to consider what provincial

courts actually do on a daily basis in this Province. This analysis, in some

considerable measure, overlaps with factor 21E(3)(i), “the nature of the jurisdiction

and responsibility of the court”. While the Provincial Court has important

jurisdiction over some family matters in some parts of the Province, the core of the

Provincial Court’s responsibilities rest within its role as the primary court for

criminal matters throughout the Province. Virtually all criminal matters start in

Provincial Court, and with the exception of serious indictable matters […..] most

criminal matters are disposed of in Provincial Court. Many criminal matters are

within the absolute jurisdiction of Provincial Court [……]. In other words, except

in the rare instances of jury trials or an accused’s election for a trial judge or a

Supreme Court judge sitting alone, the Provincial Court judges are the predominant

face of criminal justice for the people of Nova Scotia. It is well known that

Page 32

Provincial Court judges are the segment of the judiciary in this Province who are,

for the most part, the true criminal law specialists, whose expertise and experience

in the field can be relied upon. By comparison, other judges in the Province deal

with criminal matters on a more occasional basis. Day in and day out, Provincial

Court judges mete out criminal justice and struggle with the question of whether

accused persons are guilty or not, and if guilty, what the sentence should be. The

liberty and security of the person of significant members of Nova Scotia citizens is

in the hands of the Provincial Court on a constant basis. This is unique, and

stressful, work.

The Tribunal analyzed the Section 21E(3)(e) factor, that it must consider

“…the manner in which salaries and benefits paid to judges in the Province compares

to judicial compensation packages in other jurisdictions in Canada, including the

federal jurisdiction, having regard to the differences between those jurisdictions” as

follows:

[…] As noted above, the Association stresses the widening gap between Nova

Scotia’s Provincial Court judges and federally appointed judges, now in the range

of $80,000 – the highest it has ever been. It also notes that Nova Scotia’s provincial

judges’ salaries are more than $26,000 less than the national average which is taken

as the normal benchmark for PEI judicial compensation. Moreover, the Association

believes that Nova Scotia judges should receive more than New Brunswick judges

given the “differences” between the Provinces. The Government’s analysis of the

“differences” between the provinces under this heading was a considerable interest

to the Tribunal, including its observation that “New Brunswick is…a neighbor and

ordinarily a comparator for Nova Scotia”. This latter proposition was reinforced in

the Government’s Reply Submissions where the Government took the Association

to task for suggesting that the Tribunal should “discard” New Brunswick “purely

because their judges are paid the lowest in the country except for Newfoundland

[excluding Nova Scotia]. Moreover, the Government references its submissions to

the 2014 – 2017 Tribunal where it asserted “…New Brunswick has always been

one of the main comparators with Nova Scotia,” and concluded after reviewed

economic similarities, that “New Brunswick appears to be the only real comparator

for Nova Scotia.” The Tribunal thinks that there is some merit to these Government

submissions in the current context of similarities and differences among comparator

jurisdictions, and observes that the current New Brunswick salary is $246,880 (with

recommendations for this year currently pending from its judicial salary

commission) as compared to Nova Scotia’s $236,151. Of course, the full range of

Page 33

comparative data for provincial judges across the country is found in Appendix B.

The Tribunal’s assessment of comparative economic indicators is that Nova

Scotia’s economy is as prosperous if not more prosperous than that of New

Brunswick.

The Tribunal then analyzed the Section 21E(3)(f) factor which requires the

Tribunal to consider “…the provision of fair and reasonable compensation for judges

in light of prevailing economic conditions in the Province and the overall state of the

Provincial economy”. The Tribunal noted that this factor “has, somewhat

surprisingly, become almost as contentious between the Government and the

Association as the ‘jurisdictional comparators’ starting factor”. It stated:

[…] It is interesting to note that starting from the same documents (the

Government’s Fiscal Brief, Budget projections, private sector analysis, and the

like), the Government and the Association paint very different pictures of

“prevailing economic conditions” and “the overall state of the economy” – the

Association taking a rosier view than the Government, as described above.

However, even the Government concludes that the data shows that “[t]he outlook

in the short term for Nova Scotia is stable with modest growth”. The Fiscal Brief

suggests that real GDP growth for 2015 is 0.8% for Nova Scotia, which was the

slowest for “non-energy producing” economies but that real GDP growth is forecast

for 2016 at 0.9% and for 2017 at 0.8%, while the Province suggests that real GDP

growth for 2018 may be 0.9%. Thus, while the prevailing economic conditions and

overall state of the economy suggest somewhat sluggish growth, the Tribunal sees

stable if modest improvement, which does not necessarily comport with the view

that economic conditions must exclude fair and reasonable augmentation of judicial

compensation for Nova Scotia’s provincial judges, particularly in the light of the

more optimistic private sector forecasts mentioned above.

The Tribunal next provided its analysis with respect to the Section 21E(3)(g)

factor, “the adequacies of judges’ salaries having regard to the cost of living and the

growth or decline of real per capita income in the Province”:

Page 34

[…] Data quoted from Statistics Canada sources varies slightly, but is in the same

ball park. The Government’s initial Brief indicates that the legislature’s phrase

“real per capita income” is an amalgam of measures of wealth such as real GDP,

GDP per capita and average annual earnings. GDP for Nova Scotia was discussed

above, but it may be important to point out real GDP in Nova Scotia has varied over

the years from 2010 to 2014 (2010 – 2.8%; 2011 – 0.5%; 2012 – 0.9%; 2013 –

0.0%; and 2014 – 0.6%). By contrast, nominal GDP growth was consistently on

the plus side (2010 – 5.5%; 2011 – 2.2%; 2012 – 0.5%; 2013 – 2.0%; and 2014 –

1.3%). In addition, real GDP per capita rose modestly each year from a start of

$37,888 in 2010 to $37,944 in 2014. Finally, the average annual earnings in Nova

Scotia in 2015 was $48,307 which is clearly below Provincial Court judges’ salaries

by a factor of almost 5. Moreover, as the Government pointed out, historically

judges’ salaries have risen at a rate higher than the rise in per capita income. The

Tribunal thus accepts this factor alone would not warrant a rise in incomes for

Provincial Court judges from current rates.

The Tribunal then considered the Section 21E(3)(h) factor, “the relevant

submissions made to the Tribunal”. Its analysis of this factor is as follows:

[…] As stated above, the Tribunal has read the written submissions, heard the oral

submissions and considered the voluminous accompanying documentation. We

have tried to summarize these submissions for each of the “parties” under the

relevant headings from section 21E(3) of the Provincial Court Act. It will have

become apparent that the Government, when making submissions in relation to the

relevant headings, made frequent reference to the Government’s “wage mandate”

of 9%, 0%, 1% and 1.5%/0.5% over four years in dealing with civil and public

servants or those “being paid from the purse”. It also made fairly frequent reference

to the unproclaimed Public Services Sustainability (2015) Act which is intended to

back up the Government’s “wage mandate”. The Tribunal makes two observations

in relation to this approach adopted by the Government. Firstly, the Supreme Court

of Canada and Courts of Appeal across this country have indicated that civil servant

salaries, for the most part, are not appropriate comparators in the exercise of setting

judicial salaries. The Government formally acknowledged this principle, but

nonetheless made consistent reference to civil servant salaries to describe context,

background and the like in relation to its wage mandate. This is problematic,

because, secondly, the Tribunal is bound to make its recommendations on salaries

(and the other issues within its mandate) by considering and balancing the factors

found in section 21E(3) of the Provincial Court Act – duly enacted, and insofar as

the sections relating to this Tribunal’s activities are concerned, proclaimed in force,

and therefore binding on the Tribunal. On the other hand, the unproclaimed Public

Services Sustainability (2015) Act, and the Government’s wage mandate, is not

binding upon this Tribunal in any sense.

Page 35

The Tribunal also made specific reference to a written submission filed by a

single member of the public, which is discussed further in this decision.

The Tribunal then made its salary recommendation, as summarized above. In

doing so, the Tribunal provided this further comment:

Some comments on the above is necessary. The base rate in the first year has been

arrived at by taking the current New Brunswick judges’ salary rate (our best

comparator jurisdiction given the various similarities and differences among those

across the country) and adding an amount equal to 0.9% which is the real GDP

growth forecast for Nova Scotia for 2016. The Tribunal sees this latter figure as a

proxy for the likely growth in the Province’s fiscal capacity for the year and a partial

reflection of the rise in the cost of living for the year. This exercise is necessary

since the current New Brunswick salary level is subject to assessment by their next

compensation commission, which appears to be a year out of synchronization with

our Nova Scotia effort. The Tribunal is convinced that this relatively straight-

forward approach nonetheless achieves an appropriate balance among all the facts

which we must consider under section 21E(3) of the Provincial Court Act in light

of the submissions we have received. The use of the Consumer Price Index of the

previous calendar year to adjust salaries in the two subsequent years, reflects the

experience which the current members of the Tribunal have had as members of

previous incarnations of the Tribunal. We have experimented in the past with

Industrial Aggregate Index (IAI) and with the Consumer Price Index (CPI) for the

previous fiscal year. Both of these approaches revealed themselves to be

problematic for different technical reasons which need not be elaborated upon here.

Suffice to say that the CPI for the previous calendar year has proved itself a

practical and workable means to resolve the question of adjusting judges’ salaries

because of rises in the cost of living.

The Government’s Reasons – the OIC

The Government’s reasons (the “Reasons”) for departing from the Tribunal’s

recommendation that Judges’ salaries be increased by approximately 9.5% over

three years (including a 5.45% increase in the first year) are set out in the OIC.

Page 36

Reason 1 is as follows:

1. The Tribunal did not adequately consider the public interest and the submission

from the public and reflect such interests and views in the Report addressing

“Recommendation 1 – Salaries”. The Tribunal found that an approximately 9.5%

increases in the salary for Provincial Court Judges over the next three years would

be seen as a “fair and reasonable conclusion” from the perspective of ordinary

Nova Scotians (as concluded at pp. 41 and 42). This conclusion would not

accurately reflect the views of reasonable people undertaking a comparison of the

increase proposed by the Tribunal to the lower salary and funding increases to be

received by other Nova Scotians receiving remuneration out of public funds

including, for example, physicians, Crown Attorneys and public sector workers,

among others, and compared to trends in private sector wage growth in Nova

Scotia, nor does the Report appropriately reflect the submission from a member of

the public received by the Tribunal who expressly stated, “When very large

increases in salaries and benefits are given to the upper echelon of society the

general public feels helpless…”

[Emphasis added]

Reason 2 provides:

2. The Tribunal made a demonstrable error in not considering the entire compensation

package of Provincial Court Judges in Nova Scotia, including the value of the

retirement bonus known as the Public Service Award. By regulation enacted in

1986, a Public Service Award must be granted to Provincial Court Judges in Nova

Scotia upon retirement or earlier in certain circumstances: see Public Service

Award Regulations, N.S. Reg. 282/86, passed pursuant to the Act. The Public

Service Award for a judge who has served 26 years currently exceeds $118,000.

The payment is to be made on retirement although judges may request a tax-free

advance payment after 15 years of service. The Tribunal’s omission to consider

this retirement payment leads to inconsistency when making comparisons between

jurisdictions that pay no such retirement bonus; for example, New Brunswick

Provincial Court Judges appointed after April 15, 1970, do not receive a

comparable payment or bonus, yet the Tribunal established a recommended salary

for 2017 specifically using base salaries of Provincial Court Judges in New

Brunswick as the comparator salary;

Reason 3 provides:

Page 37

3. The Tribunal did not properly apply clause 21E(3)(e) and (f) of the Act, and did

not adequately consider the differences between jurisdictions as required by the

Act. The Tribunal arrived at its decision in a results-oriented and formulaic manner

to achieve an outcome which simply used New Brunswick as the only comparator

jurisdiction, which was a significant departure from the same Tribunal’s reasoning

in their 2014-2017 Report. For the 2014-17 period, New Brunswick was rejected

as a comparator jurisdiction. At that time, New Brunswick salary levels were

materially lower than Nova Scotia. Specifically, in their report of September 23,

2014, when the New Brunswick salary level for Provincial Court Judges was

$204,700, the Tribunal (made up of the same members) ordered a 3.8% increase

for Nova Scotia Provincial Court Judges to $231,500 for 2014-15 followed by

Consumer Price Index increases for each following year. This put Provincial Court

Judges in Nova Scotia $26,800 per year higher than the jurisdiction the Tribunal

now finds is the only true comparator for Nova Scotia. The effect and the apparent

intent of the Tribunal in the current Report was to accept the submission of the

Judges’ Association that achieving proximity to the national average salary level

is the single most important factor, despite the many other differences between

jurisdictions, including total compensation, housing costs, cost of living, pre-

appointment income levels and workload. To illustrate the Tribunal’s formulaic

approach, adopted to move “in proximity to” the perceived national average salary,

it is noted the Tribunal has on this occasion selected New Brunswick as the only

appropriate comparator (despite the difference in total compensation noted in

paragraph 2, above, and that New Brunswick was rejected as a comparator for

2014-17) and then decided to recommend a further increase in the salary level

above the New Brunswick level by an additional 0.9% which they said, “…is the

real GDP growth forecast for Nova Scotia for 2016. The Tribunal sees this latter

figure as a proxy for the likely growth in the Province’s fiscal capacity for the

year…” (p. 42). There is no rational basis for this conclusion; there are many

circumstances where a government’s fiscal capacity can decline despite real GDP

growth, for example where GDP growth is driven by increased government

spending or where government has a material prior year adjustment. Hoped-for

GDP growth is not a valid proxy for government fiscal capacity nor is it relevant

to the analysis called for by clauses 21E(3)(e) and (f) of the Act. In fact, GDP

growth should have very little relevance to the Tribunal’s work, particularly when

the Tribunal overlooks in its analysis that GDP per capita in Nova Scotia is

approximately $15,000 less than the national average GDP per capita;

Reason 4 provides:

4. In considering if the current salary is sufficient to support recruitment of qualified

members of the Nova Scotia Bar as Provincial Court Judges in Nova Scotia, the

Tribunal did not identify and consider in the Report any evidence of the current

actual income levels of the pool of candidates eligible for appointment as

Provincial Court Judges in Nova Scotia. The Tribunal simply concluded, without

Page 38

evidence of actual income levels whether specific or aggregated, that many were

in “elite company” (p.35) as part of the top 1% earners in Nova Scotia (p. 35).

Actual information about pre-appointment income levels and comparison to the

current salary level for provincial court judges is a practical necessity when

assessing whether the salary level of provincial court judges in Nova Scotia is

sufficient “to attract excellent candidates for appointment as judges” as required

by clause 21E(3)(c) of the Act. The Tribunal did not consider this factor. The

Tribunal separately observed that both “parties” agreed that excellent and

supremely qualified candidates are currently being attracted to the court (p. 34).

The Tribunal made a further analytical error by concluding: “But quite frankly,

many members of the pool of qualified candidates find themselves in that elite

company as well. By national standards, the threshold to enter the top 1% of

income earners in Nova Scotia is shockingly low. Thus, the top 1% of income

earners as a negative benchmark for not raising Provincial Court judges salaries

is not very helpful in relation to the question of whether current salaries will

continue to attract excellent candidates as one looks forward to the next three

years, which are the scope of this tribunal’s mandate” (p. 35). Concluding the

threshold to enter the top 1% of income earners in Nova Scotia is “shockingly low”

and then disregarding it as a factor in their assessment is an analytical error. In

fact, this supports the view that Provincial Court Judges should not be insulated

from the economic realities faced by other Nova Scotians. The Supreme Court of

Canada has noted that judicial independence exists “for the benefit of the judged,

not the judges”. (see para. 4 in Provincial Court Judges Association v. New

Brunswick Minister of Justice et al, 2005 SCC 44);

Reason 5 is as follows:

5. The Tribunal did not properly apply clause 21E(3)(f) of the Act which requires

consideration of prevailing economic conditions which includes the current state

of public finances in Nova Scotia. The modest surplus currently forecast in the

Government’s statutorily mandated fiscal plan is dependent on all persons

receiving remuneration out of public funds (whether executive, legislative or

judicial) receiving salary increases that do not exceed the growth capacity in the

fiscal plan. The fiscal plan does not contemplate making a special exception for

the wages of Provincial Court Judges. In recommending to the Governor in

Council that an exception be made for Provincial Court Judges and deciding the

public sector wage mandate reflected in the fiscal plan created under the Finance

Act, Chapter 2 of the Act of 2010 (the Finance Act), and the legislation supporting

the fiscal plan (including the yet to be proclaimed Public Services Sustainability

Act, Chapter 34 of the Acts of 2015) is “not binding on the Tribunal in any sense”

Page 39

(p. 41, emphasis added) the Tribunal gave no or inadequate consideration to the

fiscal needs of Nova Scotians as set out in the fiscal plan. The independent

constitutional roles of the legislature and executive with regard to budgeting,

raising revenue through taxation and expenditure of public money compels the

Governor in Council to vary the salary recommendation of the Tribunal.

The Tribunal has erred and/or exceeded its statutory mandate in recommending

salary levels increases over the next three years which will exceed amounts

available in the fiscal plan as set by the executive and legislative branches of

Government pursuant to Sections 5, 11 and 56 of the Finance Act. The proposed

salary increase set out in Recommendation 1 is excessive in the current

circumstances having regard to the prevailing economic conditions of the Province

of Nova Scotia and the Tribunal did not give sufficient weight to nor properly

analyze and consider the fiscal capacity of the Province.

Reason 6 and other Reasons:

6. In carrying out its mandate the Tribunal has made procedural errors (further

reasons set out below) which resulted in the Tribunal too closely adopting the

procedures of adversarial interest arbitration arising in collective bargaining

processes under labour law. The Tribunal should approach their task using the

procedures of an independent commission (see for example Section 45A of the

House of Assembly Act, Chapter 1 of the Acts of 1992). While the Tribunal

mentioned the “primacy of the public interest and the inappropriateness of

conceiving of the exercise as private litigation or mere interest arbitration” (p. 3),

objectively assessed it is difficult to distinguish the process used by the Tribunal

from “mere interest arbitration”. In the specific facts and circumstances of this

Tribunal, public confidence in the actual and apparent independence, objectivity

and effectiveness of the Tribunal could be called into question by reasonable

members of the public as a consequence. Procedural errors may have contributed

to the Tribunal’s apparent substantive errors set out in paragraphs 1 to 5 above.

With that review of the Tribunal’s statutory mandate, a synopsis of the

submissions it received, its recommendations to Government and the Government’s

reasons, the Court turns to the issues for determination.

Issue 1:

What is the legal test to be applied in reviewing the Government’s

response to the recommendations of the Tribunal?

Page 40

In NSPCJA, the Supreme Court of Canada noted that it had set out the

constitutional baseline for making changes to judicial compensation in Reference re

Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3

S.C.R. 3 (“PEI Reference”) and that the Nova Scotia Provincial Court Act

implements that baseline in Nova Scotia. (p. 10).

A review of a government’s response to a judicial compensation tribunal’s

recommendations has the aim of safeguarding judicial independence (BCPCJA at

para. 27).

In BCPCJA the Court referred to PEI Reference in confirming that the three

core characteristics of judicial independence are security of tenure, financial security

and administrative independence. Karakatsanis J explained, with reference to PEI

Reference, that financial security in turn has three components:

[31] […] The characteristic at issue in this appeal – financial security – in turn has

three components, “which all flow from the constitutional imperative that…the

relationship between the judiciary and the other branches of government be

depoliticized”: para. 131 (emphasis in original).

Again, with reference to PEI Reference, Karatkatsanis J. explained in

BCPCJA that the first component of financial security is the convening of a judicial

compensation committee to make recommendations concerning judicial

remuneration. The commission charged with making such recommendations must

Page 41

be independent, effective and objective. (para. 32, referring to PEI Reference at

para. 133).

The effectiveness requirement means that the commission must be regularly

convened, that no changes can be made to remuneration until the commission

submits its report and that “the reports of the commission must have a meaningful

effect on the determination of judicial salaries” (para. 33, with reference to PEI

Reference at paras. 174-75 and Bodner at para. 29).

To ensure that the commission’s recommendations have a meaningful effect,

the government must formally respond to the commission’s report (PEI Reference

at 179 and Bodner at para. 22).

As explained by Karakatsanis J. in BCPCJA, the standard of justification to

uphold the government’s response is that of “rationality” and the test used to measure

the government’s response against the standard is deferential:

[35] To hold a government to its constitutional obligations in jurisdictions where a

commission’s recommendations are not binding, the government’s response to the

commission’s recommendations is subject to what this Court described in Bodner as a

“limited form of judicial review”: paras. 29 and 42. The standard of justification to

uphold the government’s response is that of “rationality”: Provincial Judges Reference,

at paras. 183-84; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002]

1 S.C.R. 405, at para. 57; Bodner, at para. 29. Both the standard of justification and the

test used to measure the government’s response against the standard are “deferential”:

Bodner, at paras. 30, 40 and 43. Both the fact that the government remains ultimately

responsible for setting judicial compensation and the fact that the nature of a Bodner

review is limited serve to balance the constitutional interests at stake.

Page 42

In Bodner, the Supreme Court of Canada set out a three-part test for

determining whether a government’s decision to depart from a commission’s

recommendation meets the rationality standard:

1. Has the government articulated a legitimate reason for departing from the

commission’s recommendations?

2. Do the government’s reasons rely upon a reasonable factual foundation? and

3. Viewed globally, has the commission process been respected and have the

purposes of the commission – preserving judicial independence and

depoliticizing the setting of judicial remuneration – been achieved?

In Bodner, the Supreme Court of Canada stated that a commission’s

recommendations must be given weight. The Court explained what constitutes a

“legitimate reason” for departing from a commission’s recommendations (paras. 23-

24):

The commission’s recommendations must be given weight. They have to be

considered by the judiciary and the government. The government’s response must

be complete, must respond to the recommendations themselves and must not simply

reiterate earlier submissions that were made to and substantively addressed by the

commission. The emphasis at this stage is on what the commission has

recommended.

The response must be tailored to the commission’s recommendations and must be

“legitimate”…which is what the law, fair dealing and respect for the process

require. The government must respond to the commission’s recommendations and

give legitimate reasons for departing from or varying them.

In terms of whether the government’s reasons rely upon a reasonable factual

foundation, the Court in Bodner said that if a government places different weights

on different relevant factors, that difference must be justified, and using public

Page 43

servants or the private sector as comparators (which may be legitimate) must be

explained (para. 26):

The reasons must also rely upon a reasonable factual foundation. If different

weights are given to relevant factors, this difference must be justified. Comparisons

with public servants or with the private sector may be legitimate, but the use of a

particular comparator must be explained.

In terms of the third step in the Bodner review, the Supreme Court in Bodner

outlined the task of a reviewing court in assessing whether the commission process

was respected (para. 38):

At the third stage, the court must consider the response from a global perspective.

Beyond the specific issues, it must weigh the whole of the process and the response

in order to determine whether they demonstrate that the government has engaged

in a meaningful way with the process of the commission and has given a rational

answer to its recommendations. Although it may find fault with certain aspects of

the process followed by government or with some particular responses or lack of

answer, the court must weigh and assess the government’s participation in the

process and its response in order to determine whether the response, viewed in its

entirety, is impermissibly flawed even after the proper degree of deference is shown

to the government’s opinion on the issues. The focus shifts to the totality of the

process and of the response.

BCPCJA Karakatsanis, J. confirmed the three-part test in Bodner as the

appropriate test for a court to apply on judicial review and referred to the Court’s

description in Bodner of the judicial review of a government’s response to a

commissions’ recommendations as being a “limited form of judicial review”

(Bodner, at paras. 29 and 42). However, Justice Karakatsanis also described that the

limited review to be both “focused” and “robust” (para. 5).

Page 44

Justice Karakatsanis explained the focus of each part of the Bodner test,

including the “new” third step added after PEI Reference:

[37] Under the first two parts of the test, the focus is on the reasons given by the

government for departing from the commission’s recommendations: Bodner, at paras.

32-33 and 36. The government “must respond to the [commission’s] recommendations”

by “giv[ing] legitimate reasons for departing from or varying them”: paras. 23 and 24.

The reasons must “show that the commission’s recommendations have been taken into

account and must be based on [a reasonable factual foundation] and sound reasoning”:

paras. 25 and 26. The reasons must also “articulat[e] the grounds for rejection or

variation”, “reveal a consideration of the judicial office and an intention to deal with it

appropriately”, “preclude any suggestion of attempting to manipulate the judiciary” and

“reflect the underlying public interest in having a commission process, being the

depoliticization of the remuneration process and the need to preserve judicial

independence”: para. 25.

[38] The third part of the Bodner test looks to whether the government has respected

the commission process and, more broadly, whether purposes of that process have been

achieved: paras. 30-31, 38 and 43. This new part of the test was added by this Court in

an effort to achieve the “unfulfilled” hopes this Court had in the Provincial Judges

Reference of depoliticizing the process of setting judicial remuneration and thereby

preserving judicial independence: paras. 10-12 and 31. The third step in the Bodner test

requires the court to take a global perspective and ask whether the government

demonstrated respect for the judicial office by engaging meaningfully with the

commission process: see paras. 25, 31 and 38.

However, Karakatsanis J. stated that the third step in Bodner was “not

intended to transform the analysis into a probing review of the process through

which the government developed its response. The references to “totality” or “whole

of the process” in Bodner (para. 38) were not “meant to expand the scope of review

such that the Cabinet decision-making process must necessarily be scrutinized in

every case. (para. 39).

Page 45

Nor is the third part of the Bodner test necessarily limited to consideration of

the government’s public reasons (BCPCJA, at para. 40).

The government cannot “hide behind reasons that conceal an improper or

colourable purpose”:

[41] ….The Provincial Judges Reference and Bodner cannot be interpreted to mean

that as long as the government’s reasons are facially legitimate and appear grounded in

a reasonable factual foundation, the government could provide reasons that were not

given in good faith. Indeed, it is implicit in the third part of the Bodner test itself, that,

presented with evidence that the government’s response is rooted in an improper or

colourable purpose and has accordingly fallen short of the constitutional benchmark set

in this Court’s jurisdiction, the reviewing court cannot simply accept the government’s

formal response without further inquiry.

[Emphasis added]

Indeed, this Court notes that in Bodner, the Supreme Court linked the amount

of deference owed by a reviewing court to the government’s reasons for departing

from a commission’s recommendations to the government’s active participation in

the process as a whole:

At the third stage of the rationality analysis, the government’s reasons must be

examined globally in order to determine whether the purposes of the commission

process have been achieved. The Government’s justification for its departure from

the Commission’s recommendations is unsatisfactory in several respects.

However, at this stage, the response must be viewed globally and with deference.

From this perspective, the response shows that the Government took the process

seriously. In some respects, it had to rely on the representations it had made to the

Commission. Thus, the Government has participated actively in the process and it

should be shown greater deference than if it had ignored the process.

[Emphasis added]

Page 46

In NSPCJA, Karakatsanis J also had specific comments directed to this Court

as the motions Judge conducting the Bodner review in light of the content of the

“government-wide implications” and the “communications plan” sections of the R

& R:

[70] Some of the considerations mentioned in the discussion of government-wide

implications and in the communications plan were not rational or legitimate bases on

which to vary or reject the commission’s recommendations. If the Supreme Court of

Nova Scotia concluded that Cabinet relied on these considerations in reaching its

decision, then these documents would tend to show that one or more of the requirements

from Bodner was not met. The fact that the legislature gave the Lieutenant Governor in

Council the power to vary or reject the commission’s recommendations is not itself a

reason to vary recommendations. Likewise, the impact of accepting a recommendation

on labour negotiations is generally not a legitimate basis for varying a recommendation

made by a commission: see Bodner, at para. 160. The communications plan indicates

that the government may have been concerned about the risk of an uninformed public

reaction.

[71] Thus, the inclusion of these components of the Attorney General’s report in the

record would help the reviewing court determine whether the government’s response

was grounded in an improper purpose and whether the third part of the Bodner test,

which considers whether commission process has been respected such that the purposes

of that process have been achieved, has been met. The exclusion of these parts of the

report from the record may leave the reviewing court with an incorrect understanding

of the considerations that may have informed the government’s response. It may also

raise the question of whether the government provided legitimate reasons for departing

from the commission’s recommendations. I am accordingly of the view that the

interests of the administration of justice favour the disclosure the government-wide

implications in the Attorney General’s report and the communications plan appendix.

[Emphasis added]

Issue 2(a): In applying the legal test, has the Government provided a

constitutionally adequate and legitimate reason for varying the

Tribunal’s recommendations?

Issue 2(b): Do the Government’s reasons rely on a reasonable factual

foundation for varying the Tribunal’s salary recommendation?

Page 47

Issue 2(c): Viewed globally has the Tribunal process been respected

and have the purposes of the Tribunal – preserving judicial

independence and depoliticizing the setting of judicial

remuneration – been achieved?

I intend to address issues 2(a), 2(b) and 2(c) in the Court’s review of the

Government reasons.

Reason 1 “The Tribunal did not adequately consider the public

interest and the submission from the public and reflect such

interest and views in the Report in addressing

Recommendation 1 – Salaries”

The Judges’ Association argues that Reason 1 is not rational or legitimate. It

states that the Government misstated the task of the Tribunal in this reason and failed

to meaningfully engage with the Tribunal’s reasoning.

The Judges’ Association submits that the task of the Tribunal was to

recommend appropriate compensation for the Judges considering the objective

factors. The Tribunal concluded that an approximate 9.5% increase in the salary

for Judges over the next three years would be seen as a “fair and reasonable

conclusion” from the perspective of ordinary Nova Scotians.

Reason 1 also states that, “This conclusion would not accurately reflect the

views of reasonable people undertaking a comparison of the increase proposed by

the Tribunal to the lower salary and funding increases to be received by other Nova

Page 48

Scotians receiving remuneration out of public funds including, for example,

physicians, Crown Attorneys and public sector workers, among others, and

compared to trends in private sector wage growth in Nova Scotia.”

The Judges’ Association says that this portion of Reason 1 is simply a bald

reiteration of the Government’s position before the Tribunal and that comparing

judges’ remuneration to these other groups is improper.

The reference in Reason 1 to a submission from a member of the public is to

a letter the Tribunal received from a single member of the public, Frank Dunham,

which is appended to the Tribunal’s report as an Appendix.

In its Report, the Tribunal responded directly and substantially to the contents

of this letter:

The Tribunal wishes also to comment on the Submission received from Mr. Frank

Dunham, as mentioned above (see Appendix D). The Tribunal is grateful to Mr.

Dunham for his willingness to make a thoughtful contribution to the Tribunal’s

deliberations. Mr. Dunham is, no doubt, the kind of reasonable Nova Scotian “upon

whom the Government wishes the Tribunal to rely in making our judgments about

what is “fair and reasonable” with respect to recommendations for the setting of

judicial salaries. We note that Mr. Dunham states that unless there are additional

qualifications required for judges, “…there is no justification for an increase in

salaries and benefits beyond the cost of living increase”, which of course, is relevant

to one of the ten criteria which this Tribunal must consider (section 21E(3)(g) of

the Act). Mr. Dunham also asserts that “[w]hen very large increases in salaries and

benefits are given to the upper echelon of society, the general public feels

helpless…and…the wedge between the haves and the have-nots is driven a little

deeper”. This sentiment, of course, can be seen as relevant to the Supreme Court

of Canada’s concerns, as expressed in the PEI Reference, supra, at para. 135, and

is a salutary reminder to the Tribunal that perceptions and realities of social and

Page 49

economic inequality, should be kept in mind as basic notions in a democracy. We

trust that Mr. Dunham may ultimately conclude that the Tribunal’s balancing of all

the concerns we must take into account, including those he mentions, is reflective

of an overall “fair and reasonable conclusion” from the perspective of ordinary

Nova Scotians.

The Respondents argue that Reason 1 is not saying that the Tribunal did not

consider Mr. Dunham’s letter, but rather that the recommendations do not reflect the

concerns expressed in the letter. It seems clear to this Court that the Respondents’

position is that only way that the Tribunal could have appropriately reflected Mr.

Dunham’s submission, was to adopt it. However, the Bodner test is clear that it is

not legitimate for a party to reiterate submissions made to the Tribunal in so far as

they were substantially addressed by the Tribunal.

This Court finds that Reason 1 simply reiterates the Government’s position

before the Tribunal. It is a “bald expression of disagreement” which the Supreme

Court of Canada has held is insufficient and therefore not legitimate. (Bodner, paras.

25 and 39). Further, it is not rational or legitimate to suggest that the opinion of a

single member of the public should override the Tribunal’s very careful assessment

of each of the objective statutory factors.

Reason 2: “The Tribunal made a demonstrable error in not considering

the entire compensation package of Provincial Court Judges

in Nova Scotia, including the value of the retirement bonus

known as the Public Service Award”.

Page 50

In its Report the Tribunal noted that the Government, in its written

submissions, had referred to the proposition from Bodner at para. 15 that “the reports

of previous commissions and their outcomes form part of the background and

context that a new compensation commission should consider”. The Tribunal stated:

26.

[…] The Government rightly suggested that as a “jumping off place” for

this Tribunal’s deliberations …[i]t is important to have as complete a picture as

possible regarding the present circumstances of the compensation elements.”

Government therefore provided a helpful summary of the salary and benefits

elements which Nova Scotia Provincial Court Judges currently enjoy.

[Emphasis added]

This “helpful summary” of the elements of the Judges’ current compensation,

included the Public Service Award.

As is disclosed in the Affidavit of Judge Burrill, on February 2, 2017, counsel

for the Minister of Justice wrote to the Tribunal, enclosing a copy of the OIC and

requesting that the Tribunal review proposed legislation which would have the effect

of ceasing accrual of the Public Service Award for judges. Written submissions

were filed with the Tribunal on February 21, 2017, on behalf of each of the Judges’

Association and the Minister of Justice with respect to the proposed amendment.

On March 6, 2017, the Tribunal issued its “Review and Commentary on a

Draft Proposed Amendment to the Public Service Award Regulation Affecting

Provincial Judges”.

Page 51

It is clear from its reasons in this “Review” that the Tribunal was both aware

of and considered the Public Service Award as an element of its recommendation

for provincial court judges’ remuneration. The “Review” states:

As the Association points out, the existence of the Public Service Award was raised

by the Government at four different junctures in its briefs to the Tribunal prior to

the oral hearings on July 28, 2016 (at which time counsel for the Minister also

raised the Public Service Award in final argument). These, of course were the

hearings which resulted in our Report of November 18, 2016. However, in those

pre-report arguments, the existence of the Public Service Award was presented by

the Government as a reason for not increasing the provincial judges’ salaries. The

Government made no argument that the Public Service Awards should be abolished

or phased out. (para. 6).

[Emphasis of Tribunal]

The Tribunal’s Review concluded that it simply was not in a position to offer

precise commentary on whether the Governor in Council should adopt the proposed

amendment to the Public Service Award Regulations under the Provincial Court

Act. It stated:

It may be that with adequate information and argument, the Tribunal could make a

recommendation that the Government do so. However, we are not presently in such

a situation. Were we to do so, it would have to be in the context of a full

consideration of where the Nova Scotia provincial judges’ Public Service Awards

sit in the full context of their compensation package, and in the light of the section

21E(3) factors. We are bereft of the factual information required to make such a

judgment. While the Government’s fiscal plan is a relevant matter to consider

under subsections (f), (g), (h) and (j) of section 21E(3) of the Act, it certainly does

not trump the other factors in that section. In that regard, it may be appropriate to

point out that, contrary to the perception which may have emerged in some quarters,

the Tribunal in making its five recommendations in the Report of November 18,

2013 (sic) was very much conscious of the existence of the Public Service Award

as an aspect of the overall compensation package for Nova Scotia’s provincial

judges, and Recommendation 5 on “continuity” was made with that in mind.

Page 52

[Emphasis of Tribunal]

This Court finds that Reason 2 is not legitimate. The Tribunal clearly

considered the Public Service Award in the context of the Judges’ overall

remuneration. The fact that the Government did not lead evidence before the

Tribunal as to jurisdictions which do not pay such a “retirement bonus” cannot be

raised now as a reason the Government gives for finding fault with the Tribunal’s

recommendations.

Another point needs to be made about Reason 2. This relates to the statement

that, “[T]he Public Service Award for a judge who has served 26 years currently

exceeds $118,000.” The Judges’ Association submits, and this Court agrees, that

this statement is misleading. The figure of $118,000 is the maximum amount that

could be accrued, but the evidence before the Tribunal did not show that any judge

had actually accrued that amount. The Government’s submissions to the Tribunal

referred to aggregates of amounts that had been paid out to judges as severance and

the range of payment that had been made. It was also acknowledged by the

Government before the Tribunal that a portion of the payouts to judges had accrued

when the judges were employed with the Government prior to their appointment to

the bench.

Page 53

Reason 3: “The Tribunal did not properly apply clause 21(E)3(e) and (f)

of the Act, and did not adequately consider the differences

between jurisdictions are required by the Act.”

This reason begins by stating that the Tribunal “arrived at its decision in a

results-oriented and formulaic manner to achieve an outcome which simply used

New Brunswick as the only comparator jurisdiction”.

This Court finds that this section of Reason 3 ignores the Tribunal’s careful

assessment of each statutory factor. Reading the Report as a whole, it is abundantly

clear that the Tribunal did not arrive at its decision in either a “results-oriented” or

“formulaic manner”. Rather, the Tribunal conducted a careful assessment of each

statutory factor.

Reason 3 also attacks the Tribunal for using New Brunswick as a comparator

when the same panel members had rejected New Brunswick as a comparator in 2014.

However, the Government itself argued before the Tribunal for New Brunswick to

be a comparator. The Tribunal explicitly addressed why it found that New

Brunswick was the best comparator in “the current context”:

Moreover, the Government referenced its submissions to the 2014-2017 Tribunal

where at p. 20 it asserted “…New Brunswick has always been one of the main

comparators with Nova Scotia, “and concluded after reviewed economic

similarities, that “New Brunswick appears to be the only real comparator for Nova

Scotia.” The Tribunal thinks that there is some merit to these Government

submissions in the current context of similarities and differences among comparator

jurisdictions, and observes that the current New Brunswick salary is $246,880 (with

Page 54

recommendations for this year currently pending from its judicial salary

commission) as compared to Nova Scotia’s $236,151. Of course, the full range of

comparative data for provincial judges across the country is found in Appendix B.

The Tribunal’s assessment of comparative economic indicators is that Nova

Scotia’s economy is as prosperous if not more prosperous than that of New

Brunswick.

This Court finds that the fact that the 2014 Tribunal rejected New Brunswick

as a comparator is not a rational or legitimate reason for the Government to argue in

Reason 3 that the 2017 Tribunal erred in identifying New Brunswick as an

appropriate comparator in the circumstances before it. Reason 3 goes on to state that

“[t]he effect and the apparent intent of the Tribunal in the current Report was to

accept the submission of the Judges’ Association that achieving proximity to the

national average salary level is the single most important factor”.

The Judges’ Association points out, correctly, that it did not make that

submission to the Tribunal. Rather, it submitted that the disparity between Nova

Scotia Provincial judges’ salary and the national average was an important factor,

not the only factor by any means, that it advanced. The Tribunal clearly considered

all factors and noted that no one factor was determinative. Nor did the Tribunal state

that achieving proximity to the national average as an overriding factor in its Report.

This part of Reason 3 does not engage with the Tribunal’s Report and respond to its

salary recommendation.

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Further, as the Judges’ Association points out, the salary recommended by the

Tribunal cannot be said to achieve proximity with the national average salary. The

salary recommended by the Tribunal for 2017/2018 is $11,627 below the national

average salary for 2015/2016.

When the Tribunal’s reasons are read as a whole, it is clear that the additional

0.9% it recommended above the current New Brunswick judges’ salary, factored in

both likely growth in fiscal capacity and the rise in the cost of living. The New

Brunswick Tribunal process was a year behind that of Nova Scotia. Further, 0.9%

was less than the rise in the Consumer Price Index forecast in the Government’s

Fiscal Brief and by Statistics Canada. Reason 3 concludes with the statement that

“GDP growth should have very little relevance to the Tribunal’s work, particularly

when the Tribunal overlooks in its analysis that GDP per capita in Nova Scotia is

approximately $15,000 less than the national average GDP per capita.” However,

the Tribunal used New Brunswick as a comparator, not the national average.

This Court finds that the Government did not engage in a meaningful way

with the Tribunal’s reasoning process. Reason 3 is not legitimate and not supported

by a reasonable factual foundation.

Reason 4: “In considering if the current salary is sufficient to support

recruitment of qualified members of the Nova Scotia Bar as

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Provincial Court Judges in Nova Scotia, the Tribunal did not

identify and consider in the Report any evidence of the current

actual income levels of the pool of candidates eligible for

appointment”

This Reason relates to the attraction and retention factor. In essence, the OIC

criticizes the Tribunal for not considering evidence that was not submitted to it. This

was the evidence of the actual income levels for the pool of candidates for

appointment to the Provincial Bench. Reason 4 states, in part, “This actual

information is a practical necessity in order to be able to consider this factor”.

However, the Government itself did not put that information before the Tribunal. If

it was a “practical necessity”, it was incumbent that the Government put that

information before the Tribunal. Failure to do so, undermines the effectiveness of

the Tribunal, and blindsides it, after the fact. That is not consistent with Bodner

principles and leads to an ineffective process.

The evidence before the Tribunal led it to conclude that the pool of candidates

eligible for appointment as Provincial Court judges in Nova Scotia were “a well-

educated, professionally trained and highly experienced group of legal

practitioners”. In response to the Government’s argument before the Tribunal that

current Provincial Court judges’ salaries put judges in the top 1% earners in the

Province, the Tribunal said that utilizing the top 1% of income earners as a:

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“…negative benchmark…for not raising Provincial judges’ salaries is not very

helpful in relation to the question of whether current salaries will continue to be

adequate to attract excellent candidates as one looks forward to the next three years,

which are the scope of this Tribunal’s mandate.” (para. 44)

The Government now argues that the Tribunal made an analytical error by “so

easily dismiss[ing]” the fact that judicial salaries place judges within the top 1% of

the Province’s income earners. In its submissions to this Court counsel for the

Government stated, “[I]t is noted that Judges are paid very well in relation to

ordinary Nova Scotians”.

This Court finds that the Tribunal’s conclusion concerning the “1% argument”

was based on the statutory factors. It clearly concluded that it did not follow that

Provincial Court judges should not get a salary increase because they were in the top

1% of income earners. I find no analytical errors in the Tribunal’s reasoning on this

point. Accordingly, Reason 4 is not supported by a reasonable factual foundation.

Reason 5: “The Tribunal did not properly apply clause 21E of the Act

which requires consideration of the prevailing economic

conditions which includes the current state of public finances

in Nova Scotia”

In this reason, which is set out in full earlier in this decision, the Government

asserts that “[t]he modest surplus currently forecast in the Government’s statutorily

mandated fiscal plan is dependent on all persons receiving remuneration out of

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public funds (whether executive, legislative or judicial) receiving increases that do

not exceed the growth capacity in the fiscal plan”.

However, as noted by the Judges’ Association in its submissions to this Court,

the Government provided no evidence to establish that its forecast surplus would be

undermined if the Tribunal’s salary recommendations were implemented. In fact,

and to the contrary, the opinion of Mr. Ingram, the Government’s Director of Policy

and Fiscal Planning with the Nova Scotia Department of Finance and Treasury

Board, who gave evidence before the Tribunal, was that a raise in judicial salaries

would not have a significant impact on overall Government spending. Although the

Respondent now argues that had Mr. Ingram known that the Tribunal would

recommend salary increases in the “magnitude” it did, Mr. Ingram’s evidence may

have been different, that is pure speculation.

Reason 5 also states that the Government’s fiscal plan does not contemplate

making a special exception for the wages of Provincial Court Judges and the

Tribunal’s recommendation “that an exception be made for Provincial Court

Judges”. Reason 5 goes on to say that in deciding that the public sector wage

mandate reflected in the fiscal plan created under the Finance Act and the legislation

supporting the fiscal plan (including the then unproclaimed PSSA) was “not binding

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on the Tribunal in any sense”, the Tribunal gave no or inadequate consideration to

the fiscal needs of Nova Scotians as set out in the fiscal plan.

The Government made repeated references to its wage mandate in its

submissions to the Tribunal. The Tribunal was well aware of the Government’s

position. The Respondent acknowledges in its submissions to this Court that the

Tribunal was not bound to adhere to the Government’s fiscal plan. It argues,

however, that where measures are part of an across-the-board policy of fiscal

restraint, they are prima facie rational.

Certainly, Justice Lamer in PEI Reference makes it clear that “across-the-

board” measures which affect substantially every person who is paid from the public

purse….are prima facie rational” (para. 184).

It is worth pointing out that in PEI Reference, the Supreme Court considered

four appeals together with the same central issue of whether the guarantee of judicial

independence in s. 11(d) of the Charter restricted the ability of governments to

reduce the salaries of provincial judges.

In the case on appeal from PEI, the PEI Government had enacted the Public

Sector Pay Reduction Act which reduced the salaries of provincial court judges and

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others paid from the public purse. The Respondents refer to the following passage

from PEI Reference where Chief Justice Lamer J. stated:

[196] Finally, I want to emphasize that the guarantee of a minimal level of judicial

remuneration is not a device to shield the courts from the effects of deficit

reduction. Nothing would be more damaging to the reputation of the judiciary and

the administration of justice than a perception that judges were not shouldering their

share of the burden in difficult economic times. Rather, as I said above, financial

security is one of the means whereby the independence of an organ of the

Constitution is ensure. Judges are officers of the Constitution, and hence their

remuneration must have some constitutional status.

Justice Lamer held that if PEI established a judicial compensation committee

in future that made recommendations that the legislature declined to follow as “part

of an overall economic measure which reduces the salaries of all persons who are

remunerated by public funds,” such a response would be prima facie rational (para.

201). In that regard, he stated:

[147] As a general principle, s. 11(d) allows that the salaries of provincial court

judges can be reduced, increased, or frozen, either as part of an overall economic

measure which affects the salaries of all persons who are remunerated from public

funds, or as part of a measure which is directed at provincial court judges as a class.

The PEI legislation was prima facie rational. However, the reduction in the

judicial salaries was unconstitutional due to the lack of recourse to “an independent,

objective, and effective process for determining judicial remuneration” (para. 200).

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Of course, unlike the facts before the Court in PEI Reference, and the facts

before this Court, the PSSA was not proclaimed at the relevant time, and specifically

excluded provincial court judges from its application.

In the Manitoba appeal in PEI Reference, a judicial compensation committee

was in place. Bill 22 imposed a salary reduction on judges of the provincial court in

Manitoba which had the effect of removing an increase that had earlier been

recommended by a judicial compensation committee and accepted by the Manitoba

Government and also precluded consideration of the subsequent year by the next

judicial compensation committee. The Manitoba legislation was in force and applied

to judges whereas the PSSA was not in force and did not apply to judges.

Bodner makes it clear that government must meet the Bodner test if it departs

from a tribunal’s recommendations. As noted by Macaulay J. in Provincial Court

Judges’ Association of British Columbia v. British Columbia (Attorney General),

2012 BCSC 1022:

[73] In standing by its “net-zero” mandate argued before the JCC and reiterating

it as the principal basis for concluding that the recommended increase was

unreasonable, the government diverted its attention from the evidence and

conclusions of the commission as they relate to the constitutional requirements

applicable to setting the salaries and benefits of judges. No party, including the

PCJA, disagree that judges must share the burden of economic downturns but that

does not entitle government to avoid real involvement in the constitutional process

for determining the salaries and benefits of judges. Instead, the primary concern of

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government throughout appears to have been to avoid the potential impact of

accepting recommendations on other public sector bargaining units.

[174] In the result, the continuing invocation and repetition by government at all

stages of the process primarily consisting of the “net-zero” mantra is neither

legitimate nor rational under Bodner.

…

[176] Prince Edward Island had, in fact, passed legislation that imposed an across-

the-board cut that reduced the salaries of “substantially every person remunerated

from public funds, including members of the P.E.I. Provincial Court.” That

legislation was prima facie rational (para. 203). Nonetheless, the reduction in the

judicial salaries was unconstitutional due to the lack of recourse to “an independent,

objective, and effective process for determining judicial remuneration” (para. 200).

[77] In my view, the passage from PEI Reference, considered in context, is

illustrative but strengthens the requirement that government commit itself to the

process. The factual matrix in the present case differs significantly from the

scenario outlined above.

[78] PEI Reference does not grant government a pass on its constitutional

obligation, even in difficult economic times. The government reliance on the net-

zero mandate cannot be permitted to trump the constitutional obligations applicable

to setting judicial remuneration. The mandate is only a negotiating position for

bargaining with public sector unions. Judges are not constitutionally permitted to

participate in collective bargaining with government. The JCC understood that it

was not bound by the net-zero mandate of government.

[79] It is unfortunate that government chose not to participate meaningfully in

the constitutional process. I agree with the PCJA that the approach taken by

government rendered the process largely pointless.

[Emphasis added]

It is clear from its Report, that the Tribunal paid very careful attention to the

Government’s submissions concerning its fiscal plan and the PPSA. For example,

the Tribunal quotes from the Government’s written submissions:

[27] […] However, it is important to note that as a general proposition, under

the heading “The Constitution of Canada” the Government took the view that the

Tribunal’s approach to the factors should be conducted in the light of the Public

Services Sustainability (2015) Act (unproclaimed), as that Act has been relevant to

agreements with Crown Attorneys, Medical Residents, and Doctors Nova Scotia,

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and will likely have an impact on teachers and civil servants in bargaining units as

well as non-unionized government personnel.

The Government’s initial

Submissions at p. 10 make the following statement:

“Given the critical nature of the wage mandate and the principles supporting

it, the Minister will not and cannot advocate for increases to judicial salaries

in excess of the fiscal plan, unless one or more of the statutory criteria of

Section 21E(3) demands such a position”.

As noted above, the Government’s “envelope” determined for wage increases is a

pattern of 0% in year one, 0% in year two, 1% in year three, and 1.5% and a

subsequent 0.5% in year four. The Government thus “…urges the Tribunal to

consider the equity involved if the restrictions placed on 75,000 individuals is

ignored”. The Government argues that this approach is consistent with

observations from the Supreme Court of Canada in paragraphs 158 and 159 of the

PEI Reference Case, supra.

The Tribunal, however, after considering all the relevant statutory factors,

rejected the Government’s arguments:

[…] As stated above, the Tribunal has read the written submissions, heard the oral

submissions and considered the voluminous accompanying documentation. We

have tried to summarize these submission for each of the “parties” under the