Court of Queens Bench of Alberta  
Citation: Alberta Provincial Judges’ Association v Alberta, 2022 ABQB 415  
Date: 20220614  
Docket: 1903 24109  
Registry: Edmonton  
Between:  
Alberta Provincial Judges’ Association  
Plaintiff/Applicant  
- and -  
Her Majesty the Queen in Right of Alberta and The Lieutenant Governor in Council  
Defendants/Respondents  
_______________________________________________________  
Reasons for Judgment  
of the  
Honourable Madam Justice J.M. Ross  
_______________________________________________________  
Table of Contents  
I. Background ..................................................................................................................................3  
II. The Bodner Test and the Standard of Review..............................................................................6  
PEI Reference and Bodner ...............................................................................................................6  
British Columbia, SCC 2020............................................................................................................9  
British Columbia, BCCA 2021.......................................................................................................11  
2
III.  
IV.  
First and Second Stages of the Bodner Test...........................................................................12  
Reason A – “The 2017 Commission failed to adequately consider certain drastic negative  
economic changes since the date of the previous commission’s report” ...........................................12  
1. Government Response............................................................................................................12  
2. Association’s Position............................................................................................................14  
3. Alberta’s Position...................................................................................................................16  
4. Analysis..................................................................................................................................16  
V. Reason B – “The 2017 Commission failed to give proper weight to certain of the expert  
economic evidence and thus in reaching its conclusions significantly understated the severity and  
duration of the negative effects of the recent recession” ...................................................................17  
1. Government Response............................................................................................................17  
2. Association’s Position............................................................................................................18  
3. Alberta’s Position...................................................................................................................19  
4. Analysis..................................................................................................................................19  
VI.  
Reason C – “The 2017 Commission failed to give proper weight to the level of increases or  
decreases provided to other programs and persons funded by the Government” ..............................22  
1. Government Response............................................................................................................22  
2. Association’s Position............................................................................................................24  
3. Alberta’s Position...................................................................................................................25  
4. Analysis..................................................................................................................................26  
VII. Reason D – “The 2017 Commission reached an unsupported conclusion that maintaining the  
current judicial salary would endanger the financial security of judges” ..........................................29  
1. Government Response............................................................................................................29  
2. Association’s Position............................................................................................................29  
3. Alberta’s Position...................................................................................................................30  
4. Analysis..................................................................................................................................30  
VIII. Reason E – “The 2017 Commission did not consider evidence of relative tax burden when  
comparing total judicial compensation between provinces”..............................................................31  
1. Government Response............................................................................................................31  
2. Association’s Position............................................................................................................31  
3. Alberta’s Position...................................................................................................................32  
4. Analysis..................................................................................................................................32  
3
IX.  
Reason F – “New economic and fiscal evidence available since the release of the 2017  
Commission Report justifies a departure from the 2017 Commission salary recommendation” ......33  
1. Government Response............................................................................................................33  
2. Association’s Position............................................................................................................34  
3. Alberta’s Position...................................................................................................................35  
4. Analysis..................................................................................................................................35  
X. Third Stage of the Bodner Test ..................................................................................................36  
XI.  
Global View of the Government Response............................................................................36  
Delay in the JCC Process ...............................................................................................................39  
Commission Process and Public Sector Bargaining ......................................................................40  
Failing to Present Evidence or Argument Before the JCC ............................................................41  
Failing to Refer Alleged Errors back to the JCC ...........................................................................41  
XII. Remedy...................................................................................................................................43  
XIII. Conclusion..............................................................................................................................45  
I.  
Background  
[1]  
The 2017 Judicial Compensation Commission [2017 JCC or JCC] was established by the  
Provincial Judges and Masters-in-Chambers 2017 Compensation Commission Regulation, AR  
62/2017 [JCC Regulation], under the authority of s 42 of the Judicature Act, RSA 2000, c J-2.  
[2]  
The role of the 2017 JCC is set out in s 4 of the JCC Regulation. The JCC is to “conduct an  
inquiry respecting the appropriate level of compensation” of Provincial Judges and Masters-in-  
Chambers for the period April 1, 2017 to March 31, 2021 (s 4(1)). It is directed to determine issues  
“independently, effectively and objectively” (s 4(3)). Through the inquiry process and its report, the  
JCC “shall contribute to maintaining and enhancing the independence of the Provincial Court and  
the judges” (s 4(5)).  
[3]  
The JCC Regulation, s 13, sets out criteria that the JCC “shall consider” in making its  
recommendations [the specified criteria are referred to below as Criteria A through J]:  
(a)  
the constitutional law of Canada;  
(b)  
(c)  
(d)  
the need to maintain the independence of the judges and the Provincial Court;  
the unique nature of the role of judges;  
in the case of Provincial Court judges, the need to maintain a strong  
Provincial Court by attracting highly qualified applicants;  
 
4
(e)  
(f)  
the remuneration and benefits other judges in Canada receive;  
increases and decreases, as applicable, in the Alberta real primary household  
income per capita;  
(g)  
(h)  
the need to provide fair and reasonable compensation inlight of prevailing  
economic conditions in Alberta and the overall state of the economy,  
including the financial position of the Government;  
the Alberta cost of living index and the position of the judges relative to its  
increases or decreases, or both;  
(i)  
(j)  
the nature of the jurisdiction of judges;  
the level of increases or decreases, or both, provided to other programs and  
persons funded by the Government;  
(k)  
any other factors considered by the Commission to be relevant to the matters  
in issue.  
[4]  
The 2017 JCC held hearings on November 8-9, 2018. It released its initial report on May 9,  
2019, and its final report on May 23, 2019 [2017 JCC Report].  
[5] The JCC made four recommendations, including a recommendation that the annual salaries  
of puisne Provincial Court Judges and Masters should be increased from the judicial salary of  
$293,991 to the following amounts:  
a) effective April 1, 2017, an increase of 0.81%, to $296,382;  
b) effective April 1, 2018, an increase of 2%, to $302,304;  
c) effective April 1, 2019, an increase of 2.38%, to $309,500; and  
d) effective April 1, 2020, an increase of 2.91%, to $318,500.  
[6]  
The JCC reviewed Criteria A through J at pages 12 through 54 of the 2017 JCC Report and  
summarized the basis for its salary recommendation at pages 55-56:  
Our recommendation is, for the first two years, to accept the Association’s proposal,  
which is for increases at or below the cost of living increases, and in the second two  
years, to give further salary increases to compensate, at least in part, for projected  
increases in the cost of living and to a lesser degree in the IAI. These increases are  
necessary to avoid overall wage erosion and to maintain some semblance of the  
historic relative position of Alberta judges with respect to those in other  
jurisdictions, especially taking into account total compensation.  
In our view, this recommendation is consistent with the important principles  
underlying this process, respects the current economic realities, and is fair and  
reasonable. It has been based upon a careful and comprehensive review of the  
evidence bearing on all the criteria identified for this Commission by the Regulation.  
The Alberta economy is currently in some difficulty. Nevertheless, it remains one of  
the strongest in Canada. Though the Minister emphasized the zero percent increases  
5
for two years that have been negotiated with certain public sector unions, or imposed  
on managerial employees, and argued for no increases for the four years of our  
mandate, we reject the Minister’s position. It does not reflect the true outcomes of  
public sector bargaining for the employees covered by the collective agreements in  
question. It does not give proper weight to the prescribed criteria, including criterion  
H (the Alberta cost of living index and the position of the judges relative to its  
increases or decreases) and criterion F (increases and decreases in the Alberta real  
primary household income per capita). Most importantly, it fails to reflect the fact  
that courts are an independent branch of government, and that protection of judicial  
independence, including financial security, is a central underlying principle of the  
Canadian constitution. While Alberta Provincial Court Judges and Masters are not  
immunized from the consequences of shifts in the Alberta economy, they should not  
be required to experience effective declines in the value of their salaries in the  
absence of justification.  
2017 JCC Report at pp 55-56.  
[7]  
The Lieutenant Governor in Council made Order in Council 161/2019 on September 13, 2019  
[Government Response]. The Government accepted three of the 2017 JCC's recommendations, but  
rejected the salary recommendation, substituting instead a four-year salary freeze consistent with the  
Government’s original proposal to the 2017 JCC.  
[8]  
The accepted recommendations reflected the parties’ agreement that the age of eligibility for  
part-time service should be reduced from age 60 to age 55, the Government’s proposal that it was  
unnecessary for the Government to pass a regulation containing the exact provisions of the Judicial  
Indemnity; and an increase in the professional allowance from $3,750 to $4,500 per year, effective  
April 1, 2017.  
[9]  
The Government Response set out six reasons for the decision to reject the salary  
recommendation:  
A.  
B.  
The2017 Commissionfailed to adequatelyconsider certain drasticnegative economic  
changes since the date of the previous commission’s report.  
The 2017 Commission failed to give proper weight to certain of the expert economic  
evidence and thus in reaching its conclusions significantly understated the severity  
and duration of the negative effects of the recent recession.  
C.  
D.  
E.  
F.  
The 2017 Commission failed to give proper weight to the level of increases or  
decreases provided to other programs and persons funded by the Government.  
The 2017 Commission reached an unsupported conclusion that maintaining the current  
judicial salary would endanger the financial security ofjudges.  
The 2017 Commission did not consider evidence of relative tax burden when  
comparing total judicial compensation between provinces.  
New economic and fiscal evidence available since the release of the 2017 Commission  
Report justifies a departure from the 2017 Commission salary recommendation.  
6
[10] On November 25, 2019, the Alberta Provincial Judges’ Association [the Association], filed an  
Originating Application for Judicial Review against Her Majesty the Queen in Right of Alberta and  
the Lieutenant Governor in Council [Alberta or the Government], requesting an order quashing the  
Government Response to the 2017 JCC Report.  
II.  
The Bodner Test and the Standard of Review  
[11] This application involves a unique form of judicial review that reflects the constitutional  
principles underlying judicial compensation commissions. The principles were first articulated in  
Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island:  
Reference re Independence and Impartiality of the Provincial Court of Prince Edward Island; R v  
Campbell; R v Ekmecic; R v Wickman; Manitoba Provincial Judges’ Association v Manitoba  
(Minister of Justice), [1997] 3 SCR 3 [PEI Reference]. The test to be applied by this Court was  
established in Provincial Court Judges’ Assn of New Brunswick v New Brunswick; Ontario  
Judges’ Assn v Ontario (Management Board); Bodner v Alberta; Conférence des juges du Québec  
v Quebec (Attorney General)); Minc v Quebec (Attorney General), 2005 SCC 44 [Bodner].  
Both parties agree that the Bodner test applies, and that it provides a more limited judicial  
review compared to other administrative law contexts. However, they take different approaches to the  
standard of review. The Association takes the position that the Supreme Court recently clarified that  
Bodner review is limited in terms of scope, not deference: British Columbia (Attorney General) v  
Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 [British Columbia, SCC  
2020] and Nova Scotia (Attorney General) v Judges of the Provincial Court and Family Court of  
Nova Scotia, 2020 SCC 21 [Nova Scotia]. They argue that Bodner is a robust form of judicial review.  
Alberta argues that the Bodner test has been and remains a deferential form of judicial review, a test  
of “simple rationality”. They rely on the recent application of the Bodner test in Provincial Court  
Judges’ Association of British Columbia v British Columbia (Attorney General), 2021 BCCA 295  
[British Columbia, BCCA 2021], leave to appeal dismissed 2022 16715 (SCC).  
PEI Reference and Bodner  
[13] The elements of the Bodner test, and the standard of review which it imposes, reflect the  
principles underlying judicial compensation commissions. The constitutional requirement for the  
establishment of judicial compensation commissions is founded in the guarantee of judicial  
independence in s 11(d) of the Canadian Charter of Rights and Freedoms, in particular the  
requirement of institutional or collective financial security. The constitutional imperative is that the  
process for setting judicial compensation be “depoliticized”: the courts must “both be free and appear  
to be free from political interference through economic manipulation by the other branches of  
government” and they “must not become entangled in the politics of remuneration from the public  
purse”: PEI Reference, at para 131.  
[14] PEI Reference set out the essential elements of judicial compensation commissions, which  
arise from this constitutional imperative:  
133  
…changes to or freezes in judicial remuneration require prior recourse to a  
special process, which is independent, effective, and objective, for determining  
judicial remuneration, to avoid the possibility of, or the appearance of, political  
interference through economic manipulation…  
(Emphasis added).  
   
7
[15] Independence is achieved by the selection of commission members, and the terms of their  
tenure. In this case, the 2017 JCC was composed of Peter A. Gall, Q.C., appointed by the Minister of  
Justice and Solicitor General, Andrew C.L. Sims, Q.C., nominated by the Association, and the Chair,  
The Honourable C. Lynn Smith, Q.C., who was appointed on nomination by the first two  
Commissioners. No issue is taken with the independence of the Commissioners.  
[16] Commissions must be objective. “They must make recommendations on judges’ remuneration  
by reference to objective criteria, not political expediencies”: PEI Reference at para 173. Objectivity  
may be “ensured by including in the enabling legislation or regulations a list of relevant factors to  
guide the commission’s deliberations”: PEI Reference at para 173. In this case, the JCC Regulation,  
s 13, sets out criteria that the Commission “shall consider” in making its recommendations.  
[17] Finally, and most importantly, the commission must also be effective: PEI Reference at  
para 174. Commission reports need not binding; however, they must have “a meaningful effect on the  
determination of judicial salaries”: PEI Reference at para 175. Effectiveness is achieved by requiring  
that the executive or the legislature formally respond to a commission report and, if it “chooses not to  
accept one or more of the recommendations in that report, it must be prepared to justify this decision,  
if necessary, in a court of law”: PEI Reference at para 180.  
[18] Justification in a court of law is thus the guarantee of the most important feature of judicial  
compensation commissions their effectiveness.  
[19] In PEI Reference Chief Justice Lamer described the “standard of justification” as follows:  
183  
The standard of justification here … is one of simple rationality. It  
requires that the government articulate a legitimate reason for why it has chosen to  
depart from the recommendation of the commission, and if applicable, why it has  
chosen to treat judges differently from other persons paid from the public purse. A  
reviewing court does not engage in a searching analysis of the relationship  
between ends and means, which is the hallmark of a s.1 analysis. However, the  
absence of this analysis does not mean that the standard of justification is  
ineffectual. On the contrary, it has two aspects. First, it screens out decisions with  
respect to judicial remuneration which are based on purely political  
considerations, or which are enacted for discriminatory reasons. Changes to or  
freezes in remuneration can only be justified for reasons which relate to the public  
interest, broadly understood. Second, if judicial review is sought, a reviewing  
court must inquire into the reasonableness of the factual foundation of the claim  
made by the government …  
184  
Although the test of justification one of simple rationality must be  
met by all measures which affect judicial remuneration and which depart from the  
recommendation of the salary commission, some will satisfy that test more easily  
than others, because they pose less of a danger of being used as a means of  
economic manipulation, and hence of political interference. Across‐the‐board  
measures which affect substantially every person who is paid from the public  
purse, in my opinion, are prima facie rational. For example, an across‐the‐board  
reduction in salaries that includes judges will typically be designed to effectuate  
the government’s overall fiscal priorities, and hence will usually be aimed at  
furthering some sort of larger public interest. By contrast, a measure directed at  
judges alone may require a somewhat fuller explanation, precisely because it is  
directed at judges alone.  
8
[20] Courts struggled with the application of PEI Reference. This was acknowledged by a  
unanimous Supreme Court in Bodner, when the Court took up cases from four provinces:  
3
In [PEI Reference], this Court held that independent commissions were  
required to improve the process designed to ensure judicial independence but that  
commissions’ recommendations need not be binding. These commissions were  
intended to remove the amount of judges’ remuneration from the political sphere and  
to avoid confrontation between governments and the judiciary. The Reference has not  
provided the anticipated solution, and more is needed.  
(Emphasis added.)  
[21] The Supreme Court added an additional stage to the PEI Reference analysis for determining  
whether a government’s decision to reject a recommendation met the standard of rationality, resulting  
in the three-part test now known as the Bodner test:  
31  
(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 renumeration been achieved?  
[22] The Court also provided elaborations of the first two stages of the test. Regarding whether the  
government has provided legitimate reasons, the Court said:  
23  
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.  
24  
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.  
25  
…Reasons that are complete and that deal with the commission’s  
recommendations in a meaningful way will meet the standard of rationality.  
Legitimate reasons must be compatible with the common law and the Constitution.  
The government must deal with the issues at stake in good faith. Bald expressions of  
rejection or disapproval are inadequate. Instead, the reasons must show that the  
commission’s recommendations have been taken into account and must be based on  
facts and sound reasoning. They must state in what respect and to what extent they  
depart from the recommendations, articulating the grounds for rejection or variation.  
The reasons should reveal a consideration of the judicial office and an intention to deal  
with it appropriately. They must preclude any suggestion of attempting to manipulate  
the judiciary. The reasons must reflect the underlying public interest in having a  
commission process, being the depoliticization of the remuneration process and the  
need to preserve judicial independence.  
9
[23] As to whether the government’s reasons rely on a reasonable factual foundation, the Court  
said:  
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. If a new fact or circumstances arises after the  
release of the commission’s report, the government may rely on that fact or  
circumstance in its reasons for varying the commission’s recommendations. It is also  
permissible for the government to analyse the impact of the recommendations and to  
verify the accuracy of the information in the commission’s report.  
[24] While expanding on the elements of the test, the Court affirmed that judicial review in this  
context is limited and deferential:  
29  
The Reference states that the government's response is subject to a limited  
form of judicial review by the superior courts. The government's decision to depart  
from the commission's recommendations must be justified according to a standard of  
rationality. The standard of judicial review is described in the Reference as one of  
"simple rationality" (paras. 183-84). The adjective "simple" merely confirms that the  
standard is rationality alone.  
30  
The reviewing court is not asked to determine the adequacy of judicial  
remuneration. Instead, it must focus on the government's response and on whether the  
purpose of the commission process has been achieved. This is a deferential review  
which acknowledges both the government's unique position and accumulated expertise  
and its constitutional responsibility for management of the province's financial affairs.  
British Columbia, SCC 2020  
[25] The Supreme Court’s latest articulation of Bodner principles is found in British Columbia,  
SCC 2020. The case (along with Nova Scotia, its companion appeal) considered whether Cabinet  
submissions on the government’s response to recommendations could be disclosed upon judicial  
review. This is the case which the Association relies on for their interpretation of the standard of  
review.  
[26] In British Columbia, SCC 2020, the Court introduced Bodner analysis as a “focused, yet  
robust form of judicial review”:  
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 v. Alberta… 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.  
[27] Later in the decision, Bodner analysis is described as a limited form of judicial review where  
both the standard of rationality and the three-part analysis used to measure the government’s response  
are 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  
 
10  
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” … Bodner, at para. 29. Both  
the standard of justification and the test used to measure the government’s response  
against that 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.  
[28] At the same time, Bodner review is a test of substance, not form:  
41  
. . . The Provincial Judges Reference and Bodner cannot be interpreted to mean  
that as long as the government’s public 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 jurisprudence, the reviewing court cannot simply accept  
the government’s formal response without further inquiry.  
[29] The Court held that neither routine disclosure of Cabinet records, nor a rule precluding  
disclosure, would appropriately address these competing policy considerations. The party seeking  
disclosure must meet a threshold analysis (described in British Columbia, SCC 2020 at paras 75-79),  
following which the document must be judicially inspected. Production is subject to other rules of  
evidence such as privilege or public interest immunity. In a preliminary ruling, I held that the  
threshold test was not met in this case: Alberta Provincial Judges’ Association v Alberta, 2021  
ABQB 199 at para 33 [Preliminary Ruling].  
[30] The Supreme Court rejected the argument that by limiting the admissibility of Cabinet  
documents, Bodner review would be ineffective:  
83  
I do not agree that Bodner review is ineffective without any relevant Cabinet  
submission being included in the record. Though necessarily limited in scope, Bodner  
review is a robust form of review. The test requires that the government justify a  
departure from the commission's recommendations. The government must give  
legitimate and rational reasons for doing so and sound reasoning must be supported by  
a reasonable factual foundation. The government's response must demonstrate respect  
for the judicial office, for judicial independence, and for the commission process; as  
well, the broader objectives of the process must be achieved.  
[31] In the Preliminary Ruling, I expressed my view that a robust and effective Bodner review  
could be accomplished in this case based on the Government Response, supplemented by a  
comprehensive Record of the 2017 JCC proceedings, as well as Affidavit evidence submitted by the  
Association and found to be admissible in the Preliminary Ruling: at para 32.  
[32] British Columbia, SCC 2020 was a case about disclosure, not an application of the Bodner  
test. It did not purport to reformulate the test or change the standard to be applied. Nonetheless, the  
Bodner test was thoroughly reviewed because of its implications for the evidentiary issues before the  
Court. In that context, a unanimous Court described the test as both robust and deferential.  
[33] Bodner review goes beyond the simple rationality test of PEI Reference. The Supreme Court  
in Bodner observed that PEI Reference had not achieved the purposes of compensation commissions  
11  
- preserving judicial independence and depoliticizing the setting of judicial renumeration. More was  
needed and was provided by additions to the test for judicial review.  
[34] The “more” that was added in Bodner went beyond the third branch of the test. The focus of  
the third branch of the test respect for the commission process and support for the achievement of  
its purposes is also reflected in the guidance provided to the application of the first two branches of  
the test.  
[35] The Bodner test is both deferential and robust if the court applies each branch of the test in line  
with the guidance provided in Bodner, keeping in mind that judicial review is intended to ensure that  
commission reports have “a meaningful effect on the determination of judicial salaries”: PEI Reference  
at para 175. Such review remains deferential, because the government may disagree with the  
commission for a broad range of legitimate reasons based on a reasonable factual foundation, for which  
the standard of review is rationality. But, if the additional guidance in Bodner is followed, the review  
is also robust. It is not sufficient that the government’s reasons “are facially legitimate and appear  
grounded in a reasonable factual foundation”: British Columbia, SCC 2020 at para 41. The  
requirements of “sound reasoning” go beyond this. The government’s response “must demonstrate  
respect for the judicial office, for judicial independence, and for the commission process; as well, the  
broader objectives of the process must be achieved” British Columbia, SCC 2020 at para 83.  
Legitimate reasons must respond to and give weight to the commission’s recommendations. If  
government weighs relevant factors differently from the commission, this difference must be justified.  
Overall, the government’s response must be engaged with and consider the reasoning of the  
commission.  
British Columbia, BCCA 2021  
[36] The judicial review application brought by the British Columbia Provincial Judges’  
Association was heard approximately three weeks after the Supreme Court’s decision on the  
disclosure issue: Provincial Court Judges’ Association v British Columbia (Attorney General),  
2020 BCSC 1264. The association challenged the government’s rejection of the commission’s salary  
recommendation.  
[37] The British Columbia government’s reason for rejecting the salary recommendation and  
substituting their own figures was that the commission failed to properly consider ss 5(5)(d) and  
5(5)(f) of the Judicial Compensation Act, SBC 2003, c 59:  
(d) changes in the compensation of others paid by provincial public funds in British  
Columbia;  
. . .  
(f) the current and expected financial position of the government over the 3 fiscal years that  
are the subject of the report.  
[38] The commission had warned that because compensation changes to public sector employees  
are the result of political decisions, a comparison would risk politicizing the process. The  
government’s response stated that the commission had misconstrued the concept of “politicization”  
and failed to properly consider s 5(5)(d): British Columbia, BCCA 2021 at para 23.  
[39] The commission’s analysis considered the current government surplus and concluded that  
judicial salary increases were within the fiscal capacity of government to pay. The government  
responded that this was not a proper consideration of s 5(5)(f), because the question should not be  
whether there should be increases, but how the financial position of the province, including its  
 
12  
program of expenditure management, should impact the size of the increases: British Columbia,  
BCCA 2021 at para 23.  
[40] The chambers judge found that the Bodner test had not been met. The commission had  
properly considered the factors when recommending salary increases, and the government failed to  
justify why it gave those factors different weights in their response.  
[41] The Court of Appeal disagreed with the chambers judge’s application of the Bodner test. The  
Court agreed with the government that the commission misconstrued the concept of “politicization”  
and gave “virtually no analysis of the s 5(5)(d) factor and . . . no apparent weight to the changes in the  
compensation of others paid from the public purse”: British Columbia, BCCA 2021 at para 59. The  
government’s criticisms of the JCC’s report regarding s 5(5)(f) were also “not without foundation”:  
British Columbia, BCCA 2021 at para 68.  
[42] Ultimately the Court of Appeal found that the government’s reasons justified a departure from  
the Commission’s recommendations. Newbury JA stated: “the government was of the view that these  
factors did not justify increases of the magnitude recommended by the JCC. The government gave a  
rational and legitimate response, expressing a view it was entitled to take”: British Columbia, BCCA  
2021 at para 69.  
[43] As noted above, Alberta relies on British Columbia, BCCA 2021 to support its approach to  
the standard of review. However, there is nothing in the approach of the British Columbia Court of  
Appeal that departs from the description of the Bodner test in British Columbia, SCC 2020 as both  
deferential and robust. The Court of Appeal did not disagree with the chamber’s justice as to the  
nature of Bodner review, but as to its application.  
III.  
First and Second Stages of the Bodner Test  
[44] The Government Response provided six reasons for rejecting the 2017 JCC’s salary  
recommendation. Each of these reasons is analyzed separately below in relation to the first and second  
stages of the Bodner test. The third stage of the test including the overall conclusion on review is then  
assessed globally.  
IV.  
Reason A – “The 2017 Commission failed to adequately consider certain drastic  
negative economic changes since the date of the previous commission’s report”  
1. Government Response  
[45] Reason A of the Government Response to the 2017 JCC Report states that the 2017 JCC  
failed to give sufficient weight to economic changes since the 2013 JCC’s final report. “Most  
critically, the 2017 Commission improperly excluded a drastic drop in Alberta real primary  
household income per capita (real household income) from the final analysis on which its  
recommendations were based”: Government Response at para 13.  
[46] Reason A notes that Bodner and Provincial Court Judges’ Association of British Columbia  
v British Columbia (Attorney General), 2015 BCCA 136 [BCCA 2015] support an approach in  
which commissions consider developments, including the accuracy of financial forecasts, from the  
date of the previous commission’s report.  
[47] In Bodner, at para 14, the Supreme Court commented that the commission “process is flexible  
and its purpose is not to simply update the previous commission’s report. However, in the absence of  
     
13  
reasons to the contrary, the starting point should be the date of the previous commission’s report”:  
quoted in Government Response at para 14.  
[48] The British Columbia Court of Appeal in BCCA 2015, at paras 35-36, observed that as a  
result of post-report developments:  
35  
Sometimes, the result may be to over‐compensate judges based on unforeseen  
financial circumstances that subsequently develop, as arguably was the case in 2007.  
Because the accepted 2007 salary levels were based on an optimistic financial forecast  
that changed, no increase was sought or recommended for 2010. On other occasions  
the compensation may fall short.  
36  
Subsequent commissions can and do address these situations. Although  
commissions may be informed by previous recommendations, each commission  
inquiry is a discrete event.  
Quoted in Government Response at para 15.  
[49] The 2013 JCC issued its recommendations on February 17, 2015. The Government accepted  
the recommendations on July 8, 2015.  
[50] The 2013 JCC predicted increases in real household income for the period of its mandate.  
However, evidence submitted to the 2017 JCC indicated that real household income in Alberta in fact  
declined in 2016 by 9.7%. The Government Response also refers to revised data released by Statistics  
Canada in November 2018 indicating that the decline was 12.9%: at para 17 and footnote 7.  
[51] Reason A states that the 2017 JCC Report discussed the 2016 economic decline as  
“background” only: at para 22. The 2017 JCC focused on economic changes during the period of its  
mandate, resulting in a failure to account for the 2016 decline in real household income and  
undermining its conclusion that, without increases, salaries would fall behind the overall Alberta  
population over the four-year term. The Government Response sets out this position, and Chart 1  
which compares “changes in real judicial salary and real household income since 2014”:  
24  
Such a conclusion is incompatible with having taken into account the  
economic changes since the date of the previous commission’s report. Albertans’ real  
household income declined drastically in 2016, while the salary of the judges did not.  
When comparing changes in real judicial salaries to changes in real household income  
since the beginning of 2015, the judges come out far ahead of the general population.  
Even without salary increases, the judges will not fall behind the overall population  
through March 31, 2021. Real household income at the end of 2020 is projected to  
only be at 90% of its 2014 level.  
14  
[52] Reason A also notes that cost of living changes in 2015 and 2016 were less than projected by  
the 2013 JCC (1.1% and 1.1% actual as compared with 2013 JCC projections of 2.5% and 2.1%).  
Thus, real judicial salaries were higher in 2015 and 2016 than the 2013 JCC would have expected, as  
portrayed in Chart 2 (Government Response at para 33):  
2. Association’s Position  
[53] The Association submits that Reason A is not legitimate, as it repeats arguments the  
Government advanced before the 2017 JCC which were substantively addressed in the 2017 JCC  
Report.  
[54] The 2017 JCC did not determine that economic changes post-dating the 2013 Report were  
“background” only. Their Report states that they were “not persuaded that [they] could or should  
recommend any ‘claw back’ from the outcome of the 2013 Commission’s recommendations as  
accepted and implemented by the Alberta government”, but “it is a different matter to conclude that  
economic changes give some justification for a tempered increase during the term of our mandate”:  
2017 JCC Report at p 31. The Association submits that this latter approach was applied by the 2017  
JCC when it adopted the Association’s proposals as its salary recommendations for the first two  
years. The Association’s proposals were tempered in light of economic changes subsequent to the  
2013 JCC Report. The 2017 JCC noted that the proposed increases for these years were “at or below  
the cost of living increases”: 2017 JCC Report at p 55.  
[55] The Association submits that the Government Response ignores the 2017 JCC’s reasoning  
about the significance of the decline in real household income. The 2017 JCC Report noted that the  
Government drew attention to the “drastic fall” in real household income in 2016, and made the  
following observation:  
 
15  
… this drop in household income per capita is distributed very unevenly among  
different industrial sectors. The data not only reflect a drop in wages but also a drop in  
such factors as overtime worked, something significant in what was previously the  
overheated petrochemical construction sector.  
2017 JCC Report at p 35.  
[56] Relating to the difference between predicted and actual cost of living increases, the 2017 JCC  
Report observes that the 2013 JCC took into account all of the relevant criteria and did not just rely  
on predictions for the cost of living: 2017 JCC Report, pp 30-31.  
[57] Another aspect of the 2017 JCC Report is not addressed in Reason A. The 2017 JCC reasoned  
that salary increases to compensate for increases in the cost of living were necessary not only to  
“avoid overall wage erosion”, but also to “maintain some semblance of the historic relative position  
of Alberta judges with respect to those in other jurisdictions, especially taking into account total  
compensation”: 2017 JCC Report p 55.  
[58] In summary, the Association submits, the 2017 JCC considered and rejected the same  
argument by the Government that the 2013 JCC was overly optimistic, and that its recommendations  
were inflated given changed economic conditions. Reason A fails to meaningfully engage with the  
2017 JCC’s reasoning.  
[59] The Association makes additional arguments that in my view do not require a detailed  
analysis.  
[60] The Association argues that no information was provided to the 2017 JCC with respect to  
what economic projections were available to the 2013 JCC when it issued its final report or to the  
Government when it accepted the 2013 JCC’s salary recommendations. However, this does not relate  
to the error alleged in Reason A. The economic changes that Reason A points to occurred after the  
2013 JCC’s salary recommendations were accepted in July 2015. The evidence referred to in Reason  
A relates to differences between the actual data and the projections relied on in the 2013 JCC Report.  
Information known before July 2015 is irrelevant to this point.  
[61] The Association also argues that when the Government’s counsel was asked during oral  
submissions before the 2017 JCC how a four-year salary freeze was justified, he acknowledged that  
the Government’s position was not supported by the statutory criteria. I have reviewed the transcript  
and agree with Alberta that counsel’s comments, when read in context, do not amount to such an  
admission. When asked how “zeroes” were justified, counsel first stated that those were his  
instructions, and later said “I do not have an answer for that”. However, these comments took place in  
the context of a lengthy discussion about the statutory criteria. Passing comments made by counsel  
during argument in response to questions are difficult to interpret. Alberta submits that counsel was  
simply advising that he had nothing further to add to the submissions he had already made. In my  
view, this is a reasonable interpretation.  
[62] There was no formal withdrawal of the position advanced by Government before the JCC.  
The 2017 JCC Report does not suggest that the JCC was relying on an admission that the  
Government’s position was not supported by the statutory criteria, or that such an admission had been  
made. In the absence of an indication by the 2017 JCC that it was relying on an admission or that it  
understood that an admission had been made, it would be inappropriate for this Court to do so.  
16  
3. Alberta’s Position  
[63] Alberta argues that the 2017 JCC was obligated to take into consideration evidence that  
judges were effectively overcompensated based on unforeseen financial circumstances that developed  
after the 2013 JCC recommendations were accepted. The 2017 JCC failed to adequately take into  
account the decline in real household income, leading to its incorrect conclusion that, without  
increases judges and Masters would fall significantly behind the overall Alberta population. The  
2017 JCC also failed to consider changes in the consumer price index, and how real judicial salaries  
at the end of the 2013 JCC’s mandate differed from what was predicted. Alberta submits that the  
Government’s rejection of the salary recommendation was rational as a result.  
[64] Alberta acknowledges that the 2017 JCC accepted that economic changes occurred in 2015  
and 2016. The criticism in the Government Response is that the 2017 JCC failed to give adequate or  
any weight to this evidence.  
4. Analysis  
[65] Keeping in mind the deferential nature of Bodner review, Reason A on initial examination  
appears to set out rational reasons based on reasonable factual foundations. Reason A sets out the  
legal basis for the relevance of economic changes post-dating the 2013 JCC Report. It identifies the  
evidence relied on regarding the 2016 decline in real household income and 2015 and 2016 consumer  
price indices. The Association argues that revised data indicating that the decline in real household  
income was 12.9%, rather than 9.7%, could have been placed before the 2017 JCC. However, this  
does not mean that the factual foundation relied upon was unreasonable.  
[66] As outlined above, the first two branches of the Bodner test require more than a determination  
that the government’s reasons and factual foundation meet a standard of simple rationality. Most  
importantly, legitimate reasons must respond to and give weight to the commission’s recommendations  
and reasoning. If government weighs relevant factors differently from the commission, this difference  
must be justified. The government response must engage with and consider the reasoning of the  
commission.  
[67] Considering these aspects of the standard of review, the difficulty with Reason A is not what  
it says, but what it fails to address.  
[68] Reason A asserts that the 2017 JCC did not put sufficient weight on the 2016 decline in real  
household income, but it does not address the JCC’s observation that the drop in household income  
per capita was distributed very unevenly among different industrial sectors and reflected not only a  
drop in wages but also a drop in factors such as overtime worked in the previously overheated  
petrochemical construction sector. This failure is significant in view of the Government’s conclusion  
that judges remain ahead of the “general population” or the “average Albertan”: Government  
Response at Chart 1 and paras 24 and 26. The JCC’s assessment of this statistic impacts the  
meaningfulness of the comparison relied on in the Government Response.  
[69] Reason A asserts that the 2017 JCC should have taken into account how actual changes in the  
consumer price index compared to projected values in the 2013 JCC Report. Chart 2 portrays the  
difference in real judicial salaries based on actual versus forecasted CPI. Reason A acknowledges that  
the 2017 JCC declined to make this comparison, but still argues that real judicial salaries were higher  
than the 2013 JCC “would have expected them to be”. There is no response to or engagement with  
the reasoning of the 2017 JCC that the 2013 JCC relied on all relevant criteria, not just predictions for  
cost of living.  
   
17  
[70] As acknowledged by Alberta, the real difference between the 2017 JCC Report and the  
Government Response regarding changes in real household income and the consumer protection  
index is a difference in the weights placed on relevant criteria. As stated in Bodner at para 26, “if  
different weights are given to relevant factors, this difference must be justified”. Reason A fails to do  
this, in part because it does not respond to the 2017 JCC’s reasons for placing less weight on these  
factors. Further, Reason A focuses exclusively on changes in real household income and the  
consumer price index. As pointed out by the Association, it does not address the 2017 JCC’s  
additional concern to “maintain some semblance of the historic relative position of Alberta judges  
with respect to those in other jurisdictions”.  
[71] Finally, Reason A does not engage with the 2017 JCC’s reference to economic changes as  
justification for “a tempered increase”, or its adoption of salary recommendations for the first two  
years that were “at or below the cost of living increases”.  
[72]  
I conclude that Reason A lacks legitimacy because of its failure to engage with the reasoning  
of the 2017 JCC, and its resulting failure to justify the different weights placed on real household  
income and the consumer price index.  
V.  
Reason B – “The 2017 Commission failed to give proper weight to certain of the  
expert economic evidence and thus in reaching its conclusions significantly  
understated the severity and duration of the negative effects of the recent recession”  
1. Government Response  
[73] The Government Response in Reason B states that the 2017 JCC did not consider or give  
enough weight to certain expert and other evidence, and that this led the 2017 JCC to understate the  
severity and duration of damage to Alberta’s economic and fiscal situation.  
[74] Reason B states that the 2017 JCC accepted the shared opinion of the Association’s expert,  
Dr. McMillan, and the Government’s experts, Dr. Dahlby and Ms. Rothrock, that events of 2015 and  
2016 had an immediate severe negative effect on the Alberta economy and a corresponding  
detrimental effect on the Government’s fiscal position. The following excerpts from the 2017 JCC  
Report were quoted:  
There is no sugar‐coating the fact that, as a result of the collapse in world oil prices in  
mid‐2014, the Alberta economy has been hard hit and in a prolonged and sustained  
way. This in turn has had a profound and negative effect on the Province’s fiscal  
situation.  
The figures cited by the economists differ slightly, but in a “broad brush” sense they  
agree. Provincial deficits, even pre‐2014, began to reduce the Province’s sustainability  
fund. With the drastic drop in revenues between 2014 and 2016 the Province  
experienced substantial deficits.  
Government Response at para 39, citing 2017 JCC Report at pp 28 and 42.  
[75] Reason B argues that the 2017 JCC accepted negative evidence of the Government’s experts.  
Despite this the JCC “chose to accept what it described as the ‘more optimisticand less pessimistic’  
opinions of McMillan over those of Dahlbyregarding the degree of recovery from the recent  
recession: Government Response at para 45. The 2017 JCC “erred by relying too heavily on certain  
opinions of McMillan and not giving any or sufficient weight to the evidence based contrary or  
rebuttal opinions of Dahlby and Rothrock: Government Response at para 47. This led the 2017 JCC  
to conclude that there would be a “relatively quick and significant recovery for the overall Alberta  
   
18  
economy and a corresponding improvement in the fiscal position of the government: Government  
Response at para 49.  
[76] Reason B focuses on two examples of failures by the 2017 JCC to consider or give weight to  
evidence: first, the rebuttal points of Ms. Rothrock, who provided evidence to rebut Dr. McMillan’s  
opinion that Alberta’s economy had “substantially recovered” from the deep recession in 2015‐2016;  
and second, economic evidence provided after the hearing, in particular the Third Quarter Fiscal  
Update. Information in the Update confirmed the “more pessimistic” views of the Government’s  
experts but was not addressed in the 2017 JCC Report: Government Response at paras 50-58.  
[77] Reason B concludes that as a result of a failure to consider this evidence, the 2017 JCC  
“significantly understated both the severity of and the duration of the damage to the Alberta economy  
and the fiscal position of the government”: Government Response at para 60.  
2. Association’s Position  
[78] The Association submits that Reason B is not legitimate in that it does not respond to and  
engage with the 2017 JCC’s reasoning. It does not explain how the 2017 JCC erroneously weighed the  
evidence or justify different weights to be given to relevant factors.  
[79] The Association notes that while the 2017 JCC Report accepted certain of Dr. Dahlby’s  
opinions, it also made critical findings about his evidence, which Reason B does not refer to or  
engage in.  
[80] The Association submits that Reason B misrepresents the 2017 JCC’s conclusion by asserting,  
without foundation, that the 2017 JCC concluded there would likely be a “relatively quick and  
significant recovery for the overall economy and a corresponding improvement in the fiscal position  
of the government”. The 2017 JCC took a balanced view of the economic evidence.  
[81] Regarding the alleged failure to consider Ms. Rothrock’s rebuttal report, the Association notes  
that the 2017 JCC made specific reference to the fact that Ms. Rothrock filed three reports, including  
her rebuttal to Dr. McMillan’s report, and that Dr. McMillan addressed those reports in his evidence.  
[82] Regarding the alleged failure to consider the Update, again the 2017 JCC expressly noted that  
this information had been considered:  
Since our hearings, we have been provided with the Second and Third quarter  
updates which we have considered even where our report refers to the data and  
submissions available at the time of our hearings.  
Most of the information presented in these documents is in chart form and we do not  
propose to summarize that data in words. Suffice to say we have paid particular  
attention to this information to help us assess the expert evidence, and to help us  
understand the data not just in absolute terms, but for the trends it indicates.  
2017 JCC Report at p 40.  
[83] Further, while Reason B lists areas in the Third Quarter Update “where Alberta’s economy  
and fiscal situation is still behind, or at least not ahead of, where it was prior to the most recent  
recession” (Government Response para 58), it does not refer to positive indicia therein, which are  
consistent with the 2017 JCC’s findings.  
[84] The Association contends that it is not legitimate to criticize the 2017 JCC for not reciting  
every piece of the voluminous evidence that was before it and argues that Reason B appears to have  
 
19  
combed the 2017 JCC Report for points that were not mentioned, while ignoring the comprehensive  
analysis that was conducted.  
[85] The Association also argues that Reason B is illegitimate because it is inconsistent with the  
position taken by Government counsel before the 2017 JCC. As was the case regarding a similar  
submission in relation to Reason A, I do not accept this submission.  
[86] In response to questioning during oral submissions, the Government’s counsel acknowledged  
that Dr. Dahlby “may well have been less optimistic than the budget document, but that doesn’t  
necessarily mean he’s wrong.” When subsequently asked “But at the end of day, don’t we have to –  
don’t we have to go back to or rely upon what the government says is going to happen?”, counsel  
responded “Absolutely.” The Association interprets this as counsel having acknowledged that Dr.  
Dahlby disagreed with Government forecasts and told the 2017 JCC it should rely on the latter.  
Alberta points out that counsel immediately added that while the JCC could rely on government fiscal  
predictions, they, too, could be wrong. In that context, a reasonable interpretation of counsel’s  
comments is that he was urging the 2017 JCC to consider all the evidence.  
[87] While the 2017 JCC Report refers to differences between Dr. Dahlby’s evidence and  
government predictions in its assessment of his evidence, it does not refer to or place any reliance on  
any acknowledgement or admission by counsel. Again, I conclude that it would be inappropriate for  
the Court to do so when the JCC has not.  
3. Alberta’s Position  
[88] Alberta submits that the statement in Reason B that the 2017 JCC found that there would  
likely be “a relatively quick and significant recovery for the overall economy and a corresponding  
improvement in the fiscal position of the government,” while not a quote from the 2017 JCC Report,  
is a reasonable summary of the opinion of Dr. McMillan:  
In a nutshell, the unexpected changes in oil prices and the energy sector’s prospects  
sent Alberta into a two year recession a recession that severely impacted and  
disrupted the private and public sectors. The economic turnaround in 2017 was  
substantial and has put Alberta back on a path of continuing though moderate growth.  
Government Response at para 52, citing the McMillan Report at 1.  
[89] Ms. Rothrock’s rebuttal was provided in response to this opinion. Her rebuttal, quoted in  
Reason B, took issue with characterization of Alberta’s economic turnaround in 2017 as substantial.  
While the 2017 JCC Report refers to Ms. Rothrock’s rebuttal, it makes no mention of this point.  
[90] The Third Quarter Update showed that concerns raised in Dr. Dahlby’s report continued to  
have a real negative impact on Alberta’s economy and fiscal situation. While the 2017 JCC Report  
states that Alberta’s Updates reveal a theme of “The Recovery Remains on Track”, Alberta submits  
that information in the Update demonstrates that the path to recovery was slow and that its  
momentum had weakened. Reason B concludes from the absence of discussion of the Update, that  
the 2017 JCC did not take these current fiscal and economic conditions into account.  
[91] Alberta also submits that the Association’s approach to Reason B reflects a misunderstanding  
of the nature of Bodner review. The Government does not sit in appeal of a commission’s decision;  
it is entitled to depart from a commission’s recommendations so long as it provides rational reasons.  
4. Analysis  
[92] While the JCC accepted certain of Dr. Dahlby’s opinions, it also made critical findings about  
his evidence, which Reason B does not refer to. Specifically, the 2017 JCC Report stated:  
   
20  
We heard several references to the boom or bust, or cyclical nature of Alberta’s  
petrochemical dependent economy. We were appropriately cautioned that we should  
not assume from this that every downturn in the price of oil, or in investment, will be  
followed by an upturn. We accept that. However, we also accept the view that it is  
unrealistic and inappropriate to judge the likely conditions over the term of our  
mandate solely in comparison to the previous three or four boom years. They involved  
very high oil sands extraction investment which overheated the economy to the point  
where commentators of the stature of former Premier Peter Lougheed were urging  
more restrained development.  
We found that Dr. Dahlby’s evidence particularly tended to compare the post-oil price  
drop period with the data experienced in the boom years immediately before that drop.  
This tended to overemphasize the magnitude of the negative changes, taking  
insufficient account of the extraordinary nature of the preceding period due to ongoing  
capital investment in the oil sands.  
2017 JCC Report at p 45.  
[93] Reason B did quote the following passage of the 2017 JCC Report, noting the difference  
between Dr. Dahlby’s opinion and the Government’s own views:  
Dr. Dahlby saw much uncertainty on the horizon. In his view the potentially negative  
factors outweighed the positive factors. He referred to the risks inherent in a potential  
U.S. China trade war, rising interest rates, U.S. tax rates, the difficulty of getting  
pipelines approved, and uncertainty in the future price of oil. We found Dr. Dahlby’s  
concern for the future somewhat less optimistic than was expressed by the Province in  
its budget and economic update documents, and than in the opinion expressed by some  
of the banks and similar private sector commentators.  
Government Response at para 46, quoting 2017 JCC Report at pp 45-46.  
[94] However, Reason B did not refer to the JCC’s continued its discussion of the evidence:  
Dr. McMillan was less pessimistic. He expressed the view that the more likely future  
will be a return to a more modest, but nonetheless positive, growth in real GDP and  
similar indicators. In his report, Dr. McMillan’s projections were more in line with the  
government’s own projections. Interestingly, Dr. Dahlby, the Government’s own  
expert, took direct issue with the provincial treasurer’s stated position, describing his  
concerns at p. 30 of his initial report. While Dr. Dahlby views Dr. McMillan as  
overoptimistic in respect to Alberta’s comparative fiscal position, he says a more  
objective statement would be to say that Alberta’s overall fiscal position “remains  
relatively favourable overall in a national context”, or “remains favourable overall  
compared to the majority of other provinces”.  
2017 JCC Report at p 46.  
[95] At page 34 of its Report, the 2017 JCC also noted an inconsistency between Dr. Dahlby and  
Ms. Rothrock’s projections for household income per capita (which were based on the Government’s  
own figures) and explained that it relied upon Ms. Rothrock’s data as more current.  
[96] The 2017 JCC provided a reasoned basis for preferring Dr. McMillan’s opinion respecting  
Alberta’s economic recovery over that of Dr. Dahlby, which is not considered in the Government  
Response. This suggests that Reason B lacks legitimacy.  
21  
[97] Reason B explains the relevance of both the Rothrock rebuttal and the negative information in  
the Third Quarter Update. It does not, however, explain the significance of this evidence.  
[98] The 2017 JCC noted that Ms. Rothrock’s rebuttal opinion was considered: 2017 JCC Report  
at p 29. The rebuttal report was very brief. The pertinent parts are set out in full in the Government  
Response. They do not point to specific flaws in Dr. McMillan’s analysis; rather they point to data  
already before the 2017 JCC and take issue with general language used by Dr. McMillan to  
characterize the economic turnaround (“substantial”) and Alberta’s fiscal position (“not entirely  
new”).  
[99] As to the Update, the 2017 JCC specifically noted that it had considered update information  
“even where our report refers to the data and submissions available at the time of our hearings,” and  
that it had “paid particular attention to this information to help us assess the expert evidence, and to  
help us understand the data not just in absolute terms, but for the trends it indicates”: 2017 JCC  
Report at p 40.  
[100] The 2017 JCC Report characterizes the overall theme of the updates as “The Recovery  
Remains on Track” despite the depth of the downturn, although “ongoing cautions” are also noted:  
2017 JCC Report at p 40. Reason B states that the Update “notes that the recovery is continuing”,  
although there are “several noteworthy areas where Alberta’s economy and fiscal situation is still  
behind, or at least not ahead of, where it was prior to the most recent recession”: Government  
Response para 58. This summary is not notably different from the 2017 JCC’s assessment.  
[101] While the Update included areas of continuing concern identified in Reason B, it also  
contained positive information. The noted areas of concern, market access challenges, low oil prices,  
energy investment, resource revenue and nominal GDP, were not new. The 2017 JCC specifically  
referred to concerns raised in the first quarter update that echoed those noted in Reason B: 2017 JCC  
Report at pp 40-41.  
[102] The Association submits that it is not legitimate to criticize the 2017 JCC for not referring to  
every piece of evidence. Alberta submits that this argument misunderstands the nature of Bodner  
review. It is true that the Government need not demonstrate that the JCC erred, only that it has  
legitimate reasons to disagree with its recommendations. But a criticism that evidence has not been  
specifically discussed can only be legitimate if that evidence is not only relevant, but sufficiently  
important that it might have affected the JCC’s conclusions. Given the volume of evidence  
considered by the 2017 JCC and other commissions, any other standard would be unworkable.  
[103] It is my view that Reason B does not reach the level of legitimacy. Reason B does not engage  
with the 2017 JCC’s criticisms of Dr. Dahlby’s report, which underlay its preference for Dr.  
McMillan’s opinion. The 2017 JCC Report stated that Ms. Rothrock’s rebuttal and the Third Quarter  
Update were included in the extensive financial evidence considered. The Government Response  
does not demonstrate how parts of the rebuttal and Update that were not specifically mentioned in the  
2017 JCC Report might reasonably be expected to have affected the 2017 JCC’s assessment of the  
evidence, or its preference for Dr. McMillan’s opinion over that of Dr. Dahlby.  
22  
VI.  
Reason C – “The 2017 Commission failed to give proper weight to the level of  
increases or decreases provided to other programs and persons funded by the  
Government”  
1. Government Response  
[104] Reason C of the Government Response states that the 2017 JCC erred by failing to give  
proper weight to evidence regarding the level of increases or decreases provided to other persons and  
programs funded by the Government, contrary to Criterion J.  
[105] The PEI Reference, at para 196, observes that there is “nothing inherently irrational in  
including judges in across-the-board [salary] measures”: Government Response at para 65, citing  
2017 JCC Report at p 9. Reason C refers to Government evidence of “across-the board restraint  
measures”. Seven errors by the 2017 JCC are identified, which it is said led the JCC to fail to give  
proper weight to this evidence, and to conclude that there was no justification to apply the  
Government’s fiscal compensation restraint policy to the judges. These errors are discussed in four  
sub-sections of Reason C relating to: inferred political motivation; emphasis on effective declines in  
judicial compensation; focus on unions, experience-based grid movement, and non-salary gains; and  
lack of compensation information for the last two years.  
[106] Reason C notes that the Association submitted to the JCC that the Minister’s proposal for a  
four-year salary freeze was politically motivated. It cites the following statement as anindication that the  
2017 JCC erroneouslyagreed with this submission, and therefore minimized the importance of criterion  
J:  
The purpose of the listed criteria is to illuminate factors relevant to fair and equitable  
compensation for Alberta’s Provincial Court Judges. However, at times, submissions  
on behalf of the Minister implied that the focus was more on how the compensation  
recommended for Provincial Court Judges might influence, and further exacerbate,  
Alberta’s economic problems and the Province’s fiscal position.  
Government Response at para 76, citing 2017 JCC Report at pp 32-33.  
[107] Reason C goes on to state that while the 2017 JCC placed a “great deal of emphasis on the  
fact that the Minister’s salary position would result in an effective decline in the Judges’  
compensation as a result of inflation”, it “seems not to have considered the evidence that, as a result  
of Government’s overarching approach to restraining compensation, others funded by the  
Government were also experiencing an effective decline in their compensation”: Government  
Response at paras 78-79.  
[108] Chart 3, “Real Salaries for Persons Funded by the Government”, based on salary information  
before the JCC, and new information regarding a 5% decrease in MLA compensation, is presented as  
a demonstration that “the level of decline in real salaries for the judges [following a salary freeze] is  
very similar to the decline experienced by others funded by Government (Government Response at  
para 80):  
   
23  
[109] Reason C notes that the JCC accepted Association arguments emphasizing grid movement  
and non-salary gains available to members of large public sector unions. It states that the 2017 JCC  
failed to consider evidence that grid movements do not benefit experienced union members who are  
in an analogous position to judges; it failed to appreciate “how small the non-salary gains really were  
and that they dealt with issues that are not of concern to judges”; and it “seems to have not taken into  
consideration” that it had recommended non-salary gains for the judges: Government Response at  
paras 94 and 101.  
[110] Regarding the lack of compensation information for the last two years, Reason C notes the  
following passage in the 2017 JCC Report:  
…the Minister did not put forward any collective bargaining examples covering the last  
two years of the term. Indeed, all the major agreements the Minister referred to  
included wage reopener clauses for their third year, agreed upon by the government.  
When pressed for justification for the freeze for judges and Masters in years three and  
four, the Minister fell back on the broader fiscal and economic arguments discussed  
above.  
Government Response at para 103, citing 2017 JCC Report at p 53.  
24  
[111] It is argued that while this evidence was “simply not available”, in the information that was  
available regarding wages for persons funded by Government in 2019-2020 and 2020-2021, the  
trend is very clear”: Government Response at para 107.  
2. Association’s Position  
[112] The Association submits that Reason C relates to the weight given to Criterion J, “the level of  
increases or decreases, or both, provided to other programs and persons funded by the Government”.  
As such, Bodner requires that the Government justify the different weight that it gives to this factor.  
The Association argues that the Government Response fails to do this, and rather re-argues points  
considered and rejected by the 2017 JCC. Further, the Government Response relies on additional  
evidence that could have been put before the JCC but was not.  
[113] Reason C inferred that the 2017 JCC accepted the Association submission that the  
Government’s proposal for a four-year salary freeze was politically motivated. The Association  
submits that the 2017 JCC did not indicate explicitly or inferentially that it accepted this argument.  
[114] The quotation from the 2017 JCC Report referred to in Reason C appeared in the section of  
the 2017 JCC Report dealing with economic and fiscal criteria (Criteria F, G, and H), not in the  
Commission’s analysis of Criterion J. The quotation omits the final sentence of the paragraph: “As  
we will discuss later, it is our view that such a very small tail does not wag such a very large dog”:  
Government Response at para 76 and 2017 JCC Report at pp 32-33.  
[115] The 2017 JCC did not indicate that it was assigning less weight to Criterion J than to the other  
criteria. Rather, it noted that Alberta did not put forward any collective bargaining examples covering  
the last two years of the 2017 JCC’s mandate; as the major agreements referred to included “wage  
reopener” clauses for their third year.  
[116] Regarding the JCC’s emphasis on declines in judicial compensation, the Association submits  
that neither Chart 3 nor any similar chart was provided to the 2017 JCC and submits that it is not  
legitimate for the Government to criticize the 2017 JCC for not considering evidence the Government  
chose not to place before it in the manner relied on by the Government to reject the Commission’s  
recommendations.  
[117] As to the focus on unions, experience-based grid movement, and non-salary gains, the  
Association submits that this section of Reason C wrongly focuses on the Association’s submissions  
and not, as it is required to do, on the JCC’s analysis. For example, the contention that the 2017 JCC  
did not consider its own non-salary recommendations fails to mention the observation by the JCC that  
the professional allowance is more “a recognition of out of pocket expenses than direct  
compensation”: 2017 JCC Report, at p 58.  
[118] The Association submits that there is nothing in the 2017 JCC Report that suggests that the  
JCC inferred that the Government “chose” not to provide compensation information for the last two  
years: referring to the Government Response at para 106. Whether the evidence was not provided or  
was simply not available, does not alter the analysis. Either way, there was no information available  
to the 2017 JCC about the wage outcome in public sector settlements for the 2019 and 2020 fiscal  
years that was consistent with and supportive of a four-year wage freeze. The “trend” referred to did  
not provide new evidence of an across-the-board measure.  
[119] The Association also submits that Reason C, in comparing the position of judges to other  
 
25  
persons funded by the Government, fails to recognize or understand the unique role of the judiciary.  
Bodner confirms that legitimate reasons are required to reveal a consideration of the judicial office  
and an intention to deal with it appropriately.  
[120] The Association again relies on comments by Government’s counsel before the JCC, arguing  
that they acknowledged that the Government’s salary proposal was not justified by the statutory  
criteria, and did not reflect an across-the-board measure. I have already discussed and dismissed the  
first alleged admission. As to the second, a review of the transcript reveals that counsel did not make  
the alleged admission. She maintained her position that Alberta’s compensation proposal was  
consistent with its approach of restraint on public sector salaries. This did not mean that everybody  
must be treated equally; different processes including the judicial compensation process, collective  
bargaining and statutory freezes were employed. Everyone was “treated in accordance with how they  
should be treated.”  
[121] The alleged admissions were not clearly demonstrated, were not relied on by the JCC, and  
should not be relied on by this Court.  
3. Alberta’s Position  
[122] Alberta submits that the Association’s arguments addressed to whether Government was  
implementing an “across‐the‐board measure” seem to suggest that there must be evidence of a  
measure that treats every single person funded by government in precisely the same way. However,  
the PEI Reference and subsequent case law do not support this interpretation.  
[123] PEI Reference, at para 184, distinguished between measures which “affect substantially  
every person who is paid from the public purse” from a measure “directed at judges alone”. In British  
Columbia, BCCA 2021, at para 58, the Court stated that this principle left “no doubt that some kinds  
of salary reductions are permissible even those that do not extend to all persons paid by the  
government”. In Aalto v Canada (Attorney General), 2010 FCA 195 at paras 22-24, the Federal  
Court of Appeal also recognized that a government did not need to prove that its fiscal restraint  
policies were applied to all members of the public service to justify a restraint on judicial salaries.  
[124] Alberta submits that this case does not involve a measure directed at judges alone. Alberta  
was operating under a general across‐the‐board fiscal restraint policy, even if those restraints did not  
extend to all persons paid by the government in the same way.  
[125] Alberta submits that the passage referred to in Reason C (at para 76) should be read as the  
2017 JCC accepting an unsubstantiated political motivation as an underlying concern with regards to  
all of the criteria. This is reinforced by a reference in relation to Criterion J to the Association’s  
argument that Alberta’s position was advanced “apparently with a view to enhancing its bargaining  
position with trade unions for the future”: 2017 JCC Report at p 53. Alberta notes that the JCC  
provided no criticism of this position.  
[126] Alberta argues that the 2017 JCC made “the same error” as the commission in British  
Columbia, BCCA 2021. Criterion J required that increases or decreases in compensation for those  
paid by government be considered. The 2017 JCC erred by minimizing the weight it placed on this  
factor due to a perceived political motivation.  
[127] Alberta submits that the criticism that the 2017 JCC did not consider declines in compensation  
experienced by other persons funded by the Government is sound. The evidence summarized in Chart  
 
26  
3 does not appear to be addressed by the JCC in its consideration of Criterion J.  
[128] Further, Reason C justifies the Government’s decision to place less weight on grid movement  
and non-salary gains than the JCC did.  
[129] Regarding the final two years of the JCC mandate, Alberta submits that, as noted in Reason C,  
the trend was very clear. The evidence showed that Alberta was implementing an across‐the‐board  
fiscal restraint policy when it responded to the 2017 JCC Report and would continue to do so. Failure  
to acknowledge and give weight to Alberta’s fiscal restraint policy was an error by the 2017 JCC that  
justified deviation from its salary recommendation.  
4. Analysis  
[130] I disagree with Alberta’s position that the 2017 JCC made the same error as the commission  
in British Columbia, BCCA 2021. In that case, the commission expressed the view that because  
compensation changes to public sector employees are the result of political decisions, a comparison  
would risk politicizing the process of setting judicial compensation. The Court of Appeal found that,  
because of this misconstruction of the concept of politicization, the commission gave virtually no  
analysisand no apparent weightto the statutory criterion regarding changes in the compensation  
of others paid from the public purse: British Columbia, BCCA 2021, at paras 59 and 68.  
[131] The 2017 JCC did not make this error.  
[132] The out-of-context quotation from the 2017 JCC Report set out in Reason C cannot be  
interpreted as a determination by the JCC that Criterion J should be given little or no weight due to its  
political nature. This discussion did not relate to Criterion J. It is found in an overview of  
considerations related to the Alberta economy. The observation referred to, that “at times,  
submissions on behalf of the Minister implied that the focus was more on how the compensation  
recommended for Provincial Court Judges might influence, and further exacerbate, Alberta’s  
economic problems and the Province’s fiscal position”, was followed by the comment that “it is our  
view that such a very small tail does not wag such a very large dog”: Government Response at para  
76 and 2017 JCC Report at pp 32-33. The JCC was not suggesting that Alberta’s argument was  
illegitimate, it was simply putting that argument in context.  
[133] The 2017 JCC Report reviewed the parties’ arguments regarding Criterion J, and specifically  
responded to arguments that it was rejecting or adopting.  
[134] The JCC specifically responded to the Government’s position:  
The Minister cited public sector wage settlements with its major trade unions for 0%  
for the first two years of this Commission’s term as justification for 0% increases for  
Provincial Court Judges and Masters for all four years of this Commission’s term.  
However, the Minister did not put forward any collective bargaining examples covering  
the last two years of the term. Indeed, all the major agreements the Minister referred to  
included wage reopener clauses for their third year, agreed upon by the government.  
When pressed for justification for the freeze for judges and Masters in years three and  
four, the Minister fell back on the broader fiscal and economic arguments discussed  
above.  
2017 JCC Report at p 53.  
 
27  
[135] The JCC referred to the Association’s reply to the collective agreement examples, citing  
“other monetary advantages”, such as “grid-level or experience-based increments, protections against  
lay-offs, and so on”: 2017 JCC Report at p 53. It also noted that the Association had referred to the  
2013 B.C. Commission’s conclusion that the salary sought by government was based “too heavily on  
the Government’s policies of fiscal restraint and wage freezes in the public sector”, as this “ignores  
the fact that judges are not public servants, but a distinct branch of government”: 2017 JCC Report at  
pp 53-54.  
[136] These submissions are reflected in the JCC’s conclusion:  
The Alberta economy is currently in some difficulty. Nevertheless, it remains one of  
the strongest in Canada. Though the Minister emphasized the zero percent increases  
for two years that have been negotiated with certain public sector unions, or imposed  
on managerial employees, and argued for no increases for the four years of our  
mandate, we reject the Minister’s position. It does not reflect the true outcomes of  
public sector bargaining for the employees covered by the collective agreements in  
question. It does not give proper weight to the prescribed criteria, including criterion H  
(the Alberta cost of living index and the position of judges relative to its increases or  
decreases) and criterion F (increases and decreases in the Alberta real primary  
household income per capita). Most importantly, if fails to reflect the fact that courts  
are an independent branch of government, and that protection of judicial  
independence, including financial security, is a central underlying principle of the  
Canadian constitution. While Alberta Provincial Court Judges and Masters are not  
immunized from the consequences of shifts in the Alberta economy, they should not  
be required to experience effective declines in the value of their salaries in the absence  
of justification.  
2017 JCC Report at p 56.  
[137] In contrast, while the JCC noted the Association’s argument that “it was inappropriate for the  
government to advance a four-year freeze position for judges apparently with a view to enhancing its  
bargaining position with trade unions for the future”, it did not accept this argument or indicate in any  
other way that Criterion J was political in nature and should therefore be given less weight.  
[138] By referring to the Association’s arguments about politicization, the Government Response  
sets up a straw man and then erroneously argues that the JCC put less weight on Criterion J for this  
reason. Alberta in this application continues this fallacy by arguing that the 2017 JCC made the same  
error as the commission in British Columbia, BCCA 2021. I reject Alberta’s argument and conclude  
that this aspect of Reason C is not legitimate.  
[139] However, the portions of Reason C dealing with declines in compensation for all persons  
funded by the government, and with experience-based grid movement and non-salary gains in  
collective agreements, do provide legitimate reasons based on reasonable factual foundations for  
departing from the JCC’s recommendation.  
[140] Evidence that others funded by the Government were also experiencing effective declines in  
their compensation was not addressed by the JCC. The fact that Reason C set out in this evidence in a  
different format and included data based on a recent decision that compensation for MLAs decrease  
by 5% does not undermine either the legitimacy of this reason or the reasonableness of the factual  
foundation. This is evidence that could have affected the JCC’s conclusion that effective declines in  
28  
judicial compensation were not justified.  
[141] The 2017 JCC relied on the Association’s argument that collective agreement examples  
provided by the Government did not consider experience-based grid-movement and other non-salary  
gains. Reason C states that this was done without careful examination of the evidence, which  
demonstrated that grid movements do not benefit experienced union members who are in an  
analogous position to judges. The evidence also demonstrated that other salary gains were of small  
value and not relevant to judges. It is legitimate for the Government to criticize these omissions. The  
factual foundation for the criticism is detailed, and the reasonableness of the facts relied on is not  
disputed.  
[142] I do not accept the characterization in Reason C that the 2017 JCC’s reliance on evidence of  
grid-based movement and non-salary gains was in error; it was a different weighing of relevant  
evidence. However, the Government does not need to show error on the part of the JCC; it need only  
justify its different weighing of the evidence. In this case it did so.  
[143] As to the lack of compensation information for the last two years, I do not read the  
Government Response as the Association does, as suggesting that the JCC wrongly faulted Alberta  
for not providing this evidence. This part of Reason C simply explains the lack of evidence, refers to  
the trend demonstrated by the available evidence, and notes that the JCC failed to address this trend.  
This is advanced as a rational reason based on a reasonable factual foundation for the Government to  
disagree with the JCC.  
[144] The legitimacy of this reason requires that the Government Response engage with the JCC’s  
reasoning. The Association argues that