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.  
Page 3  
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.  
Page 11  
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  
Page 12  
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]  
Page 13  
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  
Page 14  
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 ImplicationsSection 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 legislationare 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  
Page 19  
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.  
Page 23  
(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 JudgesAssociation 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 comparatorsstarting 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