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 the Government’s fiscal restraint program, particularly given  
the wage reopener clauses in collective agreements, was not an “across-the-board” measure of the  
type referred to in PEI Reference. Alberta argues that the fiscal restraint program was a measure  
which affected “substantially every person who is paid from the public purse” and was not “directed  
at judges alone”.  
[145] Criterion J required the JCC to consider the “level of increases or decreases provided to  
other programs and persons funded by the Government”, not just across-the-board measures. PEI  
Reference indicates that, where applicable, government must “articulate a legitimate reason for ...  
why it has chosen to treat judges differently from other persons paid from the public purse”: at para  
183. While “across-the-board measures which affect substantially every person who is paid from the  
public purse ... are prima face rational, a measure directed at judges alone may require a somewhat  
fuller explanation”: at para 184. The JCC was of the view that the proposed four-year wage freeze  
would treat judges differently, as compared with a two-year wage freeze imposed on others.  
[146] Reason C does not engage with the JCC’s reasoning on this point; it points to other evidence,  
the trend in salary freezes for others paid from the public purse. The failure to engage with the JCC’s  
reasoning means that the Government has not justified its different weighing of the evidence. It has  
not articulated a legitimate reason for why it has chosen to treat judges differently.  
[147] In addition, there is force to the Association’s submission that Reason C, in comparing the  
position of judges to other persons funded by the Government, fails to address 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 in appropriately.  
[148] I conclude that the part of Reason C relating to the lack of compensation information for the  
last two years does not provide a legitimate reason or justify a different weighing of the evidence.  
29  
[149] In sum, while there are aspects of Reason C that provide legitimate reasons based on a  
reasonable factual foundation, in other respects Reason C lacks legitimacy.  
VII. Reason D – “The 2017 Commission reached an unsupported conclusion that  
maintaining the current judicial salary would endanger the financial security of  
judges”  
1. Government Response  
[150] The Government Response in Reason D states that the 2017 JCC erred by reaching an  
unsupported conclusion that maintaining the current judicial salary would endanger the financial  
security of judges.  
[151] The PEI Reference identified three requirements for the financial security of judges. The  
third is that salary must not fall below a minimum level, at which judges could be perceived as  
susceptible to political pressure through economic manipulation: PEI Reference at para 135.  
[152] Reason D notes that, in rejecting the Government proposal that judicial salary remain at the  
same level throughout its mandate, the 2017 JCC stated:  
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.  
Government Response at para 111, citing 2017 JCC Report at p 56.  
[153] Reason D argues that this is statement is equivalent to the error made by the 2001 New  
Brunswick commission, which found that a salary freeze would violate the constitution: Bodner at  
para 76. The 2017 JCC was in error because there was no evidence that Alberta judges, if they  
continued to be paid at their current salary through 2021, would fall below a level where they would  
be perceived to be susceptible to economic manipulation.  
2. Association’s Position  
[154] The Association submits that Reason D mischaracterizes the 2017 JCC’s reasoning by  
excerpting and decontextualizing a sentence from the 2017 JCC Report. The 2017 JCC did not  
conclude that maintaining the current judicial salary would endanger the financial security of judges by  
falling below a basic minimum level of remuneration.  
[155] The excerpted sentence is found in the portion of the 2017 JCC Report setting out the  
Commission’s recommendations, which gave a series of reasons for rejecting the Government’s  
proposal of a four-year judicial salary freeze. Read in context, the statement referred to in Reason D  
makes the point that, unlike compensation for public sector employees, judicial compensation must  
be determined on its own merits, based on a consideration of objective criteria.  
[156] Unlike the 2001 New Brunswick Commission, the 2017 JCC did not consider that a salary  
increase was mandatory. The JCC expressly recognized that judicial salaries may be frozen: 2017 JCC  
Report at p 9. In the paragraph from which the quote at Reason D was excerpted, the JCC notes that  
judges are not immunized from the consequences of shifts in the Alberta economy and may be  
required to experience effective declines in the value of their salaries; although not in the absence of  
justification: 2017 JCC Report at p 56.  
     
30  
3. Alberta’s Position  
[157] Alberta submits that, in stating that the most important reason for rejecting a salary freeze was  
to protect judicial independence, the 2017 JCC was saying that it believed that holding judges’  
salaries at the same rate for the term of its mandate would impact on their financial security and  
increases were therefore mandatory. It was common ground that judges’ salaries were not at or  
approaching the minimum level mention in the PEI Reference. Therefore, judge’s financial security  
was not at risk, and it was an error for the 2017 JCC to use this as its most important reason for  
rejecting a four-year salary freeze.  
4. Analysis  
[158] The sentence relied on in Reason D is one sentence in a paragraph from the 2017 JCC Report  
that has been set out earlier in these reasons, and is repeated below for ease of reference:  
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 in judicial salaries 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 p 56, emphasis added.  
[159] To take one sentence from this multi-faceted response by the JCC to the  
Government’s proposal and submit that it indicates that the 2017 JCC made the fundamental  
error alleged in Reason D is simply not maintainable. Reason D sets up a proposition that is  
inconsistent with the JCC’s reasons, as clearly demonstrated in the references noted by the  
Association.  
[160] I agree with the Association that the statement referred to in Reason D makes the  
point that judicial compensation must be determined on its own merits, based on  
consideration of objective criteria. The introduction of this consideration with the phrase  
“most importantly” does not detract from the fact that it is only one of several factors  
mentioned. Perhaps the JCC described it in this way because it reflects Criteria A, B and C  
in the JCC Regulation. As noted by the 2017 JCC in their review of these Criteria, citing the  
2013 JCC, “the protection of judicial independence is the very ‘raison d’etre’ of the  
Commission process”: 2017 JCC Report at p 14.  
[161] This kind of sophistry in the Government Response does not engage with the reasons  
of the JCC or respect its process. Reason D is not legitimate.  
   
31  
VIII. Reason E – “The 2017 Commission did not consider evidence of relative tax burden  
when comparing total judicial compensation between provinces”  
1. Government Response  
[162] Reason E of the Government Response states that the 2017 JCC adopted a “total  
compensation” approach in its analysis but failed to consider evidence regarding the tax advantage  
enjoyed by all Albertans.  
[163] An after-tax income comparison provided to the JCC concluded that, “in order to receive the  
same after tax income that Alberta judges and masters receive at their 2016-2017 salary rate, judges  
in other jurisdictions would need the following salary increases (Government Response at para 116)”:  
Table 3: Value of Alberta Judges’ Relative Tax Advantage  
Jurisdiction  
Ontario  
British Columbia  
Saskatchewan  
$ increase to equate to Alberta after tax income  
$29,455  
$21,167  
$2,684  
[164] The 2017 JCC considered the combined value of the salary, pension benefits and vacation  
entitlement when comparing the compensation of judges: Government Response at para 117, citing  
2017 JCC Report at p 27. The JCC concluded that increases to the salary of Alberta judges and  
masters were required:  
...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.  
Government Response at para 118, citing 2017 JCC Report at p 55.  
[165] Reason E concludes that the failure to consider the Government’s after-tax income  
comparison contributed to the JCC’s flawed salary recommendation.  
2. Association’s Position  
[166] The Association submits that when the parties’ submissions and the 2017 JCC Report are  
reviewed, there can be no doubt that the panel was alert to the Minister’s tax burden argument but  
simply did not find it compelling. The 2017 JCC referred to Alberta’s low tax regime at several points  
in its Report, even if it did not explicitly address it in its discussion of total compensation.  
[167] Further, the comparisons that formed the foundation for the JCC’s conclusion would not have  
been impacted by the relative tax burden argument. The argument is obviously irrelevant to the  
comparison with federally appointed Alberta judges.  
[168] Finally, if the Government considered that the 2017 JCC’s failure to sufficiently address its  
relative tax burden argument had led it to make a flawed salary recommendation, it ought to have  
raised this concern at the time of the draft Report. Section 7 of the JCC Regulation allows either party  
to seek an amendment to the Report if the JCC “failed to deal with an issue raised during the  
inquiry”. In Bodner v Alberta, 2002 ABCA 274 [Bodner, ABCA] (overturned on other grounds in  
Bodner), the majority of the Alberta Court of Appeal considered that respect for the process connotes  
     
32  
that a reasonable approach to errors identified by the Government would have the Government refer  
them back to the JCC, rather than rely upon them as a basis for rejection.  
3. Alberta’s Position  
[169] Alberta submits that the 2017 JCC adopted the total compensation approach advanced by the  
Association. Alberta’s position at the hearing was that the JCC should not take this approach, but if it  
did, it should consider all the evidence, including evidence regarding relative tax burdens. Reason E  
points out that when the 2017 JCC decided to use the total compensation approach it did so without  
considering the relative tax burden, and without explaining why this evidence was not considered.  
[170] While the tax burden evidence was discussed during the hearing, comments by a  
commissioner in that context do not form part of the 2017 JCC’s reasons and should not be accepted  
as such. The 2017 JCC Report makes no mention of relative tax burden in relation to the total  
compensation approach. The mention of Alberta’s tax regime in unrelated portions of the Report does  
not demonstrate that the JCC grappled with and dismissed this argument. This was an error on the  
partof the 2017 JCC which the Government Response legitimately objected to.  
[171] Regarding section 7 of the JCC Regulation, Alberta submits that the Association’s argument  
takes an overly expansive view of the amendments the parties may seek at this stage of the process.  
Section 7 allows the parties to request that JCC to address certain nonsubstantive issues or errors in  
the report. It would be inappropriate to use this section to relitigate issues before the JCC. Such an  
expansive interpretation of section 7 risks continual delays to the commission process.  
[172] Further this argument ignores section 7(4) of the JCC Regulation which states that “[n]othing  
requires the Minister or the Association to make a request” for amendments to the initial report.  
Section 7 is not intended to estop Alberta from raising substantive critiques of the JCC’s reasoning in  
its ultimate response.  
[173] Bodner, ABCA criticized the government for not referring errors it found in the JCC report  
back to the commission, saying that this undermined the effectiveness of the process. However, in  
the Supreme Court of Canada Bodner decision, the Court found that the commission process in  
Alberta had been effective and had been taken seriously.  
4. Analysis  
[174] Reason E identifies a failure by the JCC to address evidence presented by Alberta in  
response to the Association’s argument that a total compensation approach should be used when  
considering Criterion E, the remuneration and benefits other judges in Canada receive.  
[175] The JCC noted evidence presented by Alberta, which showed that, based on salary alone,  
Alberta judges had consistently been “at the second from the top or top rank among provincial  
courts in Canada”: 2017 JCC Report at 22-24. However, it went on to add, in making  
comparisons, “it may be appropriate to take into account other forms of compensation”: 2017  
JCC Report, at p 24.  
[176] A Report provided by the Association regarding pensions demonstrated that, “with the  
Association’s proposed salary increases, the salary plus pension compensation for Alberta  
judges…would be 17.2% less than for federal judges and 10.3% and 10.8% less than for Ontario  
judges in each of 2017 and 2018”: 2017 JCC Report at p 25. Vacation entitlement also qualified  
   
Page: 33  
the view that Alberta judges were at the top of the compensation scale. The JCC observed: “With  
respect to total compensation, they are not”: 2017 JCC Report at p 25.  
[177] The 2017 JCC Report concludes regarding Criterion E:  
We have considered the evidence provided by the Association and the Minister,  
and accept the Association’s position that it is appropriate to look beyond salaries  
and to take into account pension and vacation entitlements. We conclude that  
Alberta judges, viewed from that broader perspective, will rank well below  
federally appointed and Ontario judges in terms of total compensation even if the  
Association’s salary proposals are accepted.  
2017 JCC Report at p 27.  
[178] This conclusion is reflected in the later comment noted in the Government Response, that  
salary increases were necessary “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 at p. 55.  
[179] A comparison with Ontario judges was relied on by the JCC in relation to Criterion E,  
and the conclusion on Criterion E was relied on to support the JCC’s salary recommendations.  
However, evidence that Ontario judges would need a salary increase of $29,455 to match the  
after-tax income of Alberta judges was not addressed by the JCC. General comments about  
Alberta’s tax system did not address this evidence. The evidence, if accepted, might have  
affected the JCC’s conclusion regarding Criterion E. It would not have affected the comparison  
with federal judges, but it could have affected the comparison between Alberta and Ontario  
judges.  
[180] Both the Association and Alberta addressed arguments as to whether the failure by the  
JCC to address the tax burden evidence would constitute an error under Canada (Minister of  
Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras 127-128. However, this is not  
the applicable test. The Government Response need not demonstrate an error by the JCC; it need  
only provide legitimate reasons based on a reasonable factual foundation to disagree with the  
JCC’s recommendation. Reason E meets this standard.  
[181] As to the Association’s argument that this issue should have been returned to the JCC  
under the JCC Regulation, this does not undermine the legitimacy of Reason E. This is an  
argument better addressed under the third stage of the Bodner test.  
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”  
1. Government Response  
[182] Reason F of the Government Response refers to the direction in Bodner, at para 26, that:  
If a new fact or circumstance 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.  
   
Page: 34  
[183] Reason F notes that indicators of fiscal and economic criteria moved in a negative  
direction between the time of the hearing before the JCC and the time of the Government  
Response:  
(a)  
Government forecasts for increases in real primary household income per capita  
in the years 2019 and 2020, declined from 1.3% and 1.2% respectively, to 0.7%  
and 1.3%: GovernmentResponse at para 124;  
(b)  
(c)  
Forecasts for real GDP growth for 2019 declined from 1.6% to 0.6%:  
Government Response at paras 126-128;  
The forecasted unemployment rate increased from 6.1% to 6.8%: Government  
Response at paras 129, 131.  
[184] Reason F also cites new evidence regarding the level of increases or decreases provided  
to other programs and persons funded by the Government. As discussed in relation to Reason C,  
many public sector union collective agreements included an arbitrable wage reopener clause for  
their members’ wages for 2019-20. Reason F notes that when negotiations broke down, the  
Government introduced legislation to delay the interest arbitrations: Government Response at  
paras 134-137. Further, the Alberta Labour report in evidence at the 2017 JCC hearing was  
updated to reflect that “even more public sector unions” had entered into agreements with no  
wage increases in 2017-2018 and 2018-2019, with some extending the wage freeze to 2019-  
2020: Government Response at para 138.  
[185] Finally, Reason F refers to the MacKinnon Panel Report, which “will be used in planning  
Budget 2019 to be tabled in the fall”. It cites the Panel Report’s conclusion that “the seriousness  
of the financial challenge is undeniable”, and opinion that “the across-the-board fiscal restraint  
policy with regard to public sector compensation will need to continue if Government is going to  
meet its goal of balancing the budget by fiscal year 2022-23”: Government Response at paras  
139-141.  
2. Association’s Position  
[186] The Association submits that Reason F was selective in its choice of fiscal and economic  
indicators.  
[187] Alberta’s 2019 Budget was publicly released within six weeks of the Government  
Response. When Reason F is compared with Budget 2019, it is apparent that the Government  
took a comparatively pessimistic economic view when addressing judicial compensation.  
[188] Further, regardless of the factual foundation for Reason F, no explanation is offered as to  
why the cited changes in the 2019 and 2020 forecasts justify rejecting recommendations for the  
four years starting April1, 2017.  
[189] Regarding the evidence about access to arbitration, the Association submits that the right  
to binding arbitration to resolve disputes respecting the wage reopeners is only delayed and  
remains exercisable. Thus, the legislation was irrelevant to the 2017 JCC’s recommendations. No  
information was provided regarding other terms of the collective agreements in the Alberta  
Labour report update. As the 2017 JCC concluded, zeros were not the “true outcomes” in the  
collective agreements already negotiated at the time of its Report.  
[190] The Association submits that the McKinnon Report is not evidence of an “across-the-board  
 
Page: 35  
measure” of the type referred to in PEI Reference.  
[191] In general, the Association submits that there is no explanation of how the “new evidence”  
cited under Reason F affects the reasoning of the 2017 JCC Report. As such, the reason fails the  
first stage of Bodner in that it does not engage with the JCC’s reasoning. The mere existence of  
new facts is not sufficient to justify the rejection of a JCC’s recommendations. If this reason were  
to stand as legitimate, it could be expected that no JCC’s recommendations would ever be  
implemented since there are always new facts available, and the JCC process would be rendered  
ineffective.  
3. Alberta’s Position  
[192] Alberta submits that the significance of Reason F is clear certain economic and fiscal  
criteria were moving in a negative direction and the across‐the‐board fiscal restraint policy was  
to be continued by the Government, as evidenced by the continued freeze on public sector  
compensation and the acceptance of the MacKinnon Report. These negative indicators and the  
continued restraint justified a rejection of the four years of raises recommended by the 2017 JCC.  
[193] As to the argument that Reason F takes a selective approach in the economic and fiscal  
forecasts provided, Alberta submits that the Association did not point to any differences of any  
consequence. By any measure there was a significant drop in real GDP forecasts.  
[194] Reason F’s reliance on negative changes in economic indicators from the time of the JCC  
Report to the date of the Government Response is rational and provides a reasonable factual  
foundation in support of the Government’s decision to reject the salary recommendation.  
[195] New information regarding public sector compensation and the comments in the  
MacKinnon Report showed that the Government’s across‐the‐board fiscal restraint policy was  
continuing and was likely to continue in the future. Such evidence addressed the 2017 JCC’s  
criticism that Alberta did not put forward evidence on this point for the final two years of the  
JCC’s mandate and therefore dealt directly with the reasoning of the JCC.  
4. Analysis  
[196] Bodner permits a government responding to a commission report to rely on new facts and  
circumstances.  
[197] The new information provided in Reason F related to new fiscal and economic forecasts  
and Government’s continued fiscal restraint policy regarding public sector salaries. While  
Reason F does not restate the JCC’s reasoning, reference back to Reason B, regarding the JCC’s  
conclusions as to the severity and duration of the recent recession, and Reason C, regarding the  
lack of public sector compensation information for the last two years of the JCC’s mandate,  
provide context to demonstrate the relevance of the new facts and circumstances.  
[198] I agree with Alberta that the Association’s references to additional information do not  
demonstrate consequential differences or other reasons to reject the factual foundation relied on  
in Reason F.  
   
Page: 36  
[199] However, I also agree with the Association’s point that Reason F, with its future focus,  
does not justify rejecting the JCC’s recommendations for the full four years of the JCC’s  
mandate starting April1, 2017. There is no sound reason in Reason F to backdate the effect of  
the new information. Further, the inclusion of new information about the trend in public sector  
compensation does not remedy the failure in the Government Response to engage with the JCC’s  
reasoning on this point. Thus, while Reason F has some legitimacy, it is limited in scope.  
X.  
Third Stage of the Bodner Test  
[200] The third and final stage of Bodner review was articulated as follows:  
31 (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?  
[201] Bodner provided the following explanation of the third stage of the test:  
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 the 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.  
[202] I will commence a global view of the Government Response. Afterwards, I will address  
the parties’ arguments regarding other aspects of the JCC process.  
XI.  
Global View of the Government Response  
[203] From my review of the six reasons provided in the Government Response, I have  
concluded that some of the reasons offered to reject the JCC’s salary recommendations were  
legitimate, while others were not.  
[204] The general theme underlying my conclusions that certain reasons were not legitimate,  
lay in a failure in the Government Response to engage with the reasoning of the JCC, and to  
justify a different weighing of the evidence.  
[205] For example, in Reason A, the Government relied on developments relating to Criteria F  
and H, real household income and the cost-of-living index, since the release of the 2013 JCC  
Report. However, Reason A did not respond to or even refer to reasoning of the JCC supporting  
lesser weight to be placed on this data.  
[206] In Reason B, the Government challenged the JCC’s preference for the economic forecast  
provided by Dr. McMillan over that of Dr. Dahlby. Reason B relied on two pieces of evidence  
that that were not discussed in detail in the 2017 JCC Report. Reason B did not engage at all with  
   
Page: 37  
the JCC’s criticisms of Dr. Dahlby’s evidence and did not provide any explanation how the  
JCC’s assessment of the evidence could have been affected by the allegedly overlooked  
evidence.  
[207] Reason C included legitimate reasons to disagree with the JCC regarding the proper  
weight to be given to evidence of declines in compensation experienced by other persons funded  
by the Government, and evidence of grid movement and non-salary benefits in collective  
agreements. However, Reason C’s argument that the JCC gave too little weight to Criterion J  
due to an inferred political motivation was based on submissions before the JCC, rather than on  
the JCC’s reasoning. Further, consideration of compensation information for the last two years of  
the JCC’s mandate failed to engage with the JCC’s reasoning or justify a different weighing of  
the evidence.  
[208] Reason D also did not engage with the reasoning of the JCC; in fact, it levelled a  
criticism disconnected from the JCC’s reasoning, and from the evidence advanced and positions  
taken at the hearing.  
[209] It is a serious concern that on a significant number of occasions the Government  
Response failed to give weight to the JCC’s reasoning, instead reiterating submissions from the  
hearing. Such reasons do not reflect the underlying the underlying public interest in having a  
commission process.  
[210] Concern regarding lack of respect for the commission process is further highlighted  
where, as in this case, the Government Response does not reveal a consideration of the judicial  
office or an intention to deal with it appropriately. As stated in British Columbia, SCC 2020:  
85  
… Although across-the-board salary increases or reductions that affect  
judges have been found to meet the rationality standard, a government that does  
not take into account the distinctive nature of judicial office and treats judges  
simply as a class of civil servant will fail to engage with the principle of judicial  
independence…  
[211] The Government Response emphasized comparisons of judicial salaries as compared  
with others funded by the Government (Reason C, Chart 3), and as compared with “average”  
Albertans (Reason A, Chart 1). However, neither in those Reasons nor elsewhere did the  
Government Response consider the distinctive nature of the judicial office, even though this is a  
required consideration under constitutional law and Criteria A through C of the JCC Regulation.  
[212] Not only did the Government Response fail to consider the distinctive nature of judicial  
office, but Reason D harshly criticized the JCC for stating: “Most importantly, [the Government  
proposal] 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.” In my view, Reason D of the Government Response is a clear  
indicator of a lack of respect for the JCC process.  
[213] The Association submits that a lack of respect for the JCC process is further  
demonstrated by the fact that the 2017 JCC’s salary recommendation was dismissed in its  
entirety, with the Government imposing the four-year salary freeze thatithadoriginallyproposedto  
Page: 38  
the JCC. Again, this suggests a lack of respect for the JCC process, as observed in Nova Scotia:  
44  
Further, the government in this case appears to have implemented  
precisely the increase it proposed in its submission to the commission, again  
raising the issue of whether the government respected the commission process:  
see Bodner, at para. 23; B.C. Provincial Court Judges, at para. 85. In doing so,  
like the Quebec government in Bodner itself, the Nova Scotia government  
“appears to have been content to restate its original position without answering  
key justifications for the [commission’s] recommendations” para. 159...  
[214] Alberta responds that the Government accepted three of four recommendations made by  
the 2017 JCC, and imposed a salary freeze over four years instead of the recommended collective  
increase of 8.34 %. Not only the salary freeze is relevant.  
[215] Alberta refers to Association of Justices of the Peace of Ontario v Ontario, 2016 ONSC  
6001. In that case, the Association argued that Ontario failed to respect the process because it  
rejected the commission’s (the majority report) recommendations regarding salary. Justice  
Swinton disagreed:  
54  
I disagree. The Response sets out in detail why the LGIC disagreed with  
the Majority recommendation on salary. It explained why it preferred the  
Minority analysis and conclusion. It accepted some of the Commission’s  
recommendations respecting allowances, attire and books. Reading the Response  
as a whole, I conclude that Ontario has engaged meaningfully with the  
Commission process in respect of the salary and WASH Court day issues.  
[216] Alberta submits that the setting of judicial remuneration is not a mathematical calculation  
by either the commission in its report or the government in its response. As such, the Court  
should not look at the extent of any departure from the recommendations as a sign of respect or  
disrespect. Rather, the Court should look at all the circumstances including, but not limited to,  
the acceptance of three of the four recommendations and the explanations provided where the  
government departed from the recommendations.  
[217] I do not find the fact that other recommendations were accepted significant.  
Recommendation 2, that the age of eligibility for part-time service should be reduced to age 55,  
from age 60, reflected an agreement between the parties. Recommendation 3, that it was  
unnecessary for the Government to pass a regulation concerning judicial indemnity, was  
proposed by Government. Recommendation 4, that the professional allowance should be  
increased from $3750 per year to $4500 per year, was noted by the JCC to be both modest, and  
of a character “more as a recognition of out-of-pocket expenses than direct compensation”: 2017  
JCC Report at p 58. Acceptance of these recommendations does not change the fact that the 2017  
JCC’s salary recommendation was dismissed in its entirety, with the Government imposing the  
four-year salary freeze that it had originally proposedtothe JCC.  
[218] I agree with Alberta that the extent of departure from the JCC recommendation alone  
does not demonstrate disrespect for the Commission process. All the circumstances must be  
considered. I find the extent of departure significant in this case because of the other indications  
of a lack of respect for the process that I have identified in the Government Response.  
Page: 39  
[219] I found that the Government Response did include several legitimate reasons to disagree  
with the JCC based on a reasonable factual foundation. However, considered globally, the  
Government Response does not meet the Bodner test.  
Delay in the JCC Process  
[220] The Association submits that the Government failed to appoint the 2017 JCC in a timely  
way. For example, it was not until more than six months into the JCC’s mandate, after the  
Association advised the Government that it would be bringing an application for an order of  
mandamus to compel the appointment of the Government’s nominee to the JCC, that the  
Government identified its nominee. This delay furthered a pattern of delay that also permeated the  
2013 JCC process, including both its own delayed appointment and the Government’s delay in  
implementing its pension and Judicial Indemnity recommendations.  
[221] Because of its delayed appointment, the Report of the 2017 JCC was not released until  
more than two years into its mandate, like the 2013 JCC’s Report beforeit.  
[222] In Newfoundland and Labrador Association of Provincial Court Judges v  
Newfoundland and Labrador, 2018 NLSC 140, Justice Faour held that systemic delay  
diminishes the effectiveness and credibility of the JCC process. The Association acknowledges  
that the Government’s pattern of delay here is not of the same magnitude as that which plagued  
the Newfoundland and Labrador Tribunal process for more than 30 years. Nonetheless, the  
delays in the 2013 and 2017 JCC processes evidence a lack of respect for a constitutionally  
mandated process.  
[223] Alberta denies the allegations of delay and submits that the JCC process has consistently  
complied with the legislative framework.  
[224] Section 42(2) of the Judicature Act, RSA 2000, c J-2 sets the timing forcommissions:  
42(2) The commission or commissions must be established on or before April 1 in  
2006 and 2009 and every 4 years thereafter.  
[225] The 2009, 2013 and 2017 commissions were all established by regulations enacted within  
the legislated timeframe. Each of the regulations required the Lieutenant Governor in Council to  
issue a response within 120 days of receipt of the commission’s report. In each case the  
government response was issued within the legislated timeframe.  
[226] Alberta notes that while there was delay in the implementation of a recommendation of  
the 2013 JCC, this was due to consultation regarding required legislative amendments.  
[227] In sum, Alberta submits, the judicial compensation process in Alberta has progressed as  
required under the legislation and any allegation of delay, certainly deliberate delay, is  
unfounded.  
[228] It is significant, in my view, that legislated timelines regarding the commission process  
have consistently been met. This distinguishes the Newfoundland and Labrador case. Other  
delays described in the Association’s evidence are explained or are not significant in terms of the  
overall timelines. They do not demonstrate a lack of respect for the commission process.  
 
Page: 40  
Commission Process and Public Sector Bargaining  
[229] The Association submits that the Government advanced a political proposal at the  
commencement of the 2017 JCC process, proposed a four-year freeze for judicial compensation  
that was not justified by statutory criteria, and later set a date for the 2017 JCC to provide its  
report that was politically motivated, all informed by the Government’s desire to avoid impact on  
its public sector bargaining mandate prior to the next election. As a result, the purposes of the  
JCC, preserving judicial independence and depoliticizing the setting of judicial remuneration,  
have not been achieved.  
[230] This argument includes arguments by the Association regarding alleged admissions by  
Government counsel before the JCC. I have already rejected those arguments. It also repeats an  
argument made to the 2017 JCC, as discussed in relation to Reason C. That argument was not  
accepted by the JCC, and I will not revisit that issue.  
[231] The only new part of this argument relates to letters sent to the 2017 JCC after the  
hearing, on November 29 and December 18, 2018, on behalf of the Minister of Justice and  
Solicitor General, directing that the JCC should release its report on June 1, 2019 and not before  
that date. This was done without prior knowledge or consent of the Association.  
[232] June 1, 2019 was the day after the statutory deadline for the next general election in  
Alberta. As it turned out, the election was held on April 16, 2019. The 2017 JCC released its  
initial report on May 9, 2019 and the final 2017 JCC Report was provided on May 23, 2019.  
[233] The Association submits that this direction by the Government demonstrates that it was  
taking a politically motivated approach to the process, informed by its desire to avoid impact on  
its public sector bargaining mandate prior to the next election.  
[234] Alberta denies these allegations and states that they are based on speculation,  
unsupported by and at times contrary to the evidence.  
[235] Alberta’s written submissions to the JCC explained a proposal it made for a potential  
joint submission to the 2017 JCC: to defer the commission hearings for two years and freeze  
compensation in the interim. The proposal was rejected by the Association. The government’s  
rationale for making the proposal was summarized as:  
to allow the parties and this Commission access to updated predictive economic  
data and other relevant information in respect specifically to the issue of this  
Commission’s recommendations of the appropriate judicial compensation for the  
last two years of this Commission’s mandate.  
[236] Alberta’s submission referred to volatility in economic conditions. It made no reference  
to collective bargaining or negotiating strategy for public sector compensation or to an election.  
This information was before the JCC, which did not accept the Association’s argument that  
Alberta’s position was politically motivated.  
[237] As to the date set for release of the 2017 JCC Report, Alberta notes that the JCC  
Regulation provides in section 6 that the Commission shall present its report containing its  
recommendations to the Minister of Justice and Solicitor General and the Association on the date  
 
Page: 41  
determined by the Minister and previously notified to the JCC.  
[238] Alberta disagrees that setting the date for issuance of the Report politicized the process.  
Deferral of the report until after the election was the appropriate response for non‐political  
reasons. Alberta’s action was in accord with the governing legislation. Further, it recognized the  
practical reality that Cabinet would not be in a position to address the 2017 JCC Report  
adequately in the weeks leading up to the election. This is significant as s 8 of the JCC  
Regulation required that the Order in Council containing the Government Response be made  
within 120 days after the presentation of the Report.  
[239] I agree with Alberta that the Association has not demonstrated that the direction to the  
2017 JCC to issue its report after the impending election was held politicized the process. There  
were legal and practical considerations for the direction, and there is no evidence that the  
direction was given for political reasons, rather than these appropriate considerations.  
Failing to Present Evidence or Argument Before the JCC  
[240] The Association submits that Reasons A-F contain numerous instances where the 2017  
JCC was criticized for not considering evidence that was not put before it. The alleged instances  
include:  
(a) in Reason A, where the Government criticized the 2017 JCC for not considering  
economic changes that arose after the 2013 JCC Report, despite that the Government did  
not provide the 2017 JCC with information about the economic data that would have  
been available at the time the 2013 JCC Report was issued;  
(b) in Reason C, where the Government criticized the 2017 JCC for not considering evidence  
similar to that presented in Chart 3, showing the general wage increases received, in 2014  
dollars, against the impact of increases in the cost of living, which the Government chose  
not to place before the 2017 JCC in that manner; and  
(c) in Reason C, where the Government criticized the Association for not advancing  
evidence of the value of non-salary gains made by some unions during bargaining,  
despite that it was incumbent upon the Government to put such evidence before the 2017  
JCC if it considered such a valuation to be important.  
[241] I have already dismissed the arguments made in paragraphs (a) and (b). The information  
referred to in paragraph (a) was not relevant, and paragraph (b) does not relate to evidence, but  
its manner of presentation. It does not disrespect the JCC process for Government to choose a  
different manner of presentation.  
[242] The argument in paragraph (c) simply raises different views as to which party might have  
been expected to present the evidence referred to. Procedural or evidentiary disputes are not  
unusual in court or administrative proceedings and do not indicate a lack of respect for the  
process.  
Failing to Refer Alleged Errors back to the JCC  
[243] This concern was addressed in relation to Reason E. The Association submits that the  
Government raised no concern at the time the draft Report was released regarding the 2017  
JCC’s failure to address the relative tax burden argument. Instead, the Government elected to  
rely upon this failure as Reason E for rejecting the recommendations. I held that this did not  
   
Page: 42  
remove the legitimacy of Reason E but might be a consideration under the third stage of the  
Bodner test.  
[244] Section 7 of the JCC Regulation provides:  
7(1) The Commission may amend a report presented under section 6 after  
reviewing any submissions made by the Minister and the Association if  
(a) the Commission is satisfied that that report  
(i)  
failed to deal with an issue raised during the  
inquiry, or  
(ii)  
contains an obvious error,  
and  
(b) the Minister or the Association requests that the Commission  
amend that report within 30 days after receiving that report  
under section 6.  
(2) Within 30 days after receiving a request under subsection (1)(b), the  
Commission shall either present an amended report to the Minister and the  
Association or inform them that there will be no amended report.  
(3) An amended report under subsection (2) may differ from the report presented  
under section 6 only so far as is necessary to deal with the matters referred to in  
subsection (1)(a).  
(4) Nothing requires the Minister or the Association to make a request under  
subsection (1)(b).  
[245] The Alberta Court of Appeal commented on this situation in Bodner, ABCA, in its  
discussion of remedy, as follows:  
162  
It is unfortunate that, upon concluding the Commission was in error, the  
government chose not to refer the error back to the Commission, which it was  
entitled, although, not required to do. Rather, it chose to use the error as a basis  
for a wholesale rejection of and modification of the Commission’s  
recommendations. The government offers no reason why it did not avail itself of s  
20(1) of its legislation…  
163 …It may be that neither party is compelled to refer errors it thinks ought to be  
corrected back to the Commission. In that sense, it is not mandatory. But it does  
not follow that those alleged errors can form the basis of a wholesale rejection of  
the Commission’s recommendations as they did here. While the government  
retains the power to reject, where its reasons meet the constitutional standard of  
justification, respect for the process connotes that a reasonable approach to these  
types of errors would have the government return to the Commission as  
contemplated by s 20(1) of the regulation…  
[246] As noted by Alberta under Reason E, when Bodner was reversed on other grounds in the  
Supreme Court of Canada, the Court held that the Commission process had been respected.  
[247] Apart from the impact of the Supreme Court decision, it seems to me that the situation  
Page: 43  
here is very different from that considered by the Court of Appeal. Reason E, as one of six  
reasons and one of five alleged errors by the JCC, is not realistically characterized as the basis  
for a wholesale rejection of the JCC’s recommendations. Most of the Government’s criticisms  
could not have been raised under s 7. Referring Reason E back to the JCC may have led to  
relitigating the tax argument, as described by Alberta in its submissions regarding Reason E. It  
clearly would not have resolved the Government’s issues with the 2017 JCC Report, and  
therefore would simply have resulted in an additional step in the procedure. In these  
circumstances, I do not find that the decision by Alberta to exercise its discretion not to refer the  
tax burden argument back to the JCC demonstrated a lack of respect for the process.  
XII. Remedy  
[248] The Association asks the Court to declare that the recommendations set out in the 2017  
JCC Report be implemented, and that s. 18 of the JCCRegulation is of no force and effect as the  
Government cannot, by Regulation, restrict the Court’s powers to grant appropriate redress for a  
constitutional breach. Alternatively, the Association seeks a direction that the matter be  
reconsidered by the Government, with direction as to the content of a new proposed Order in  
Council to be made. In the circumstances of this case, the Association takes the position that it is  
not appropriate to refer the matter back to the Government for reconsideration with the prospect  
of another rejection.  
[249] In Bodner, the Supreme Court of Canada stated that courts must give deference to  
governments responding to JCC recommendations. As part of that deference, the appropriate  
remedy “will generally be to return the matter to the government for reconsideration.”  
[250] Nevertheless, the Association submits, courts have found fit to order implementation of  
commission recommendations, in a variety of circumstances, including:  
(a) where the government acted in bad faith or egregiously failed to achieve depoliticization  
of the process;  
(b) where the evidence before the reviewing court does not provide any basis for  
confidence that the government will respect the process;  
(c) where there would appear to be no basis for the government to reject the  
recommendations once an improper rationale has been eliminated;  
(d) where there would otherwise be significant delay in completing the constitutional  
process.  
[251] The Association argues that Government’s conduct; in particular, conduct which results in  
a failure to achieve depoliticization of the setting of judicial remuneration, may justify an order for  
implementation, because it suggests that implementation will be the only effective remedy.  
[252] The Association has argued that the Government’s conduct was improper in delaying the  
process, failing to provide the 2017 JCC with evidence or arguments which it later relied on to  
reject their Report, advancing a salary proposal that it acknowledged was not supported by the  
statutory criteria, and acting to protect its position in public sector bargaining in anticipation of  
an election. I have considered and rejected all these arguments.  
[253] I have found that significant portions of the Government Response indicate a lack of  
 
Page: 44  
respect for the JCC process. However, I also found that the Government Response includes  
several legitimate reasons based on reasonable factual foundations.  
[254] These circumstances, where the Bodner test is failed due to issues with the Government  
Response, rather than the Government’s participation in the overall process, and where the  
Government Response includes legitimate reasons as well as substantial shortcomings, support  
the typical remedy of referral back to the Government.  
[255] The Association submits further that timeliness should be considered in assessing an  
appropriate and effectiveremedy. It cites Judges of the Provincial Court (Manitoba) v  
Manitoba, 2013 MBCA 74, at paras 160-162, in which the Manitoba Court of Appeal observed  
that time had marched on since the 2008 commission report under consideration, that the salary  
levels recommended in it had been relied on in the subsequent 2011 report, and that nothing  
would be gained by further delay. The Association also relies on BCCA 2015, in which the  
British Columbia Court of Appeal considered a reconsidered government response to 2010  
commission recommendations, provided after the first response had been set aside on judicial  
review and the matter had been returned to government. When the reconsidered response did not  
comply with the Bodner test, the Court held that continuation of uncertainty was not in the best  
interest of either party; it was necessary for the 2010 commission process to end.  
[256] While time has certainly marched on in this case, too, timeliness concerns are not yet as  
extreme as in the cases referred to by the Association and are not sufficient to alter my view that  
referral back is the appropriate remedy.  
[257] My conclusion regarding remedy follows from the direction in Bodner in the  
circumstances of this case. I have not found it necessary to rely on section 18 of the JCC  
Regulation, which provides:  
18(1) If  
(a) the Lieutenant Governor in Council decides, with reasons, not to accept  
any of the recommendations in whole or in part,  
(b) the Association or any judge brings an application for judicial review of  
that decision, and  
(c) that application is successful,  
the Court may not make the report binding on the Crown but may refer the report  
to the Lieutenant Governor in Council or to the Commission for a reconsideration.  
(2) If the Court makes the reference under subsection (1), the Lieutenant  
Governor in Council or the Commission, as the case may be, has 120 days from  
the day that the application was granted to reconsider the recommendations in  
accordance with the directions, if any, of the Court.  
[258] Accordingly, I do not find it necessary to address the parties’ arguments regarding the  
constitutional validity of s 18 of the JCC Regulation. This issue has been placed before the Court  
as the Association served notice of a constitutional challenge under s 24 of the Judicature Act,  
and both parties argued the matter on its merits. However, the Court has a discretion regarding  
whether to address an issue that is not required for its decision. In deciding not to address the  
Page: 45  
issue, I am keeping in mind that constitutional issues are best decided in the context of an  
appropriate factual context. Here, I have concluded that s 18 has not restricted my authority to  
direct the appropriate remedy in the circumstances of this case. A challenge to s 18 would be  
better addressed in an application where the court concludes that it has such an effect, or in a  
declaratory application where there is opportunity for the parties to submit evidence about the  
purpose and effect of this provision.  
XIII. Conclusion  
[259] I have concluded that the Government Response fails to meet the requirements of the  
Bodner test. The Government Response is set aside and the 2017 JCC Report is referred back to  
the Lieutenant Governor in Council for reconsideration in accordance with these reasons, within  
the 120-day timeline prescribed under s. 18(2) of the JCC Regulation.  
[260] The parties have jointly proposed that costs should be dealt with by written submissions if  
they are unable to agree. This proposal is acceptable, provided that submissions are delivered  
within six months of this decision. The parties may contact me for additional timelines or other  
directions regarding submissions.  
Heard on the 6th and 7th days of October 2021.  
Dated at the City of Edmonton, Alberta this 14th day of June, 2022.  
J.M. Ross  
J.C.Q.B.A.  
Appearances:  
Susan Dawes and Kristen Worbanski  
Myers LLP  
for the Applicant  
Doreen Mueller, QC, Lesley Akst and Josh de Groot  
Alberta Ministry of Justice and Solicitor General  
(Civil Litigation)  
for the Respondents  
 


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