Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General)

Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2005-07-22
Neutral citation
2005 SCC 44
Report
[2005] 2 SCR 286
Case number
29525, 30006, 30148, 30477
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
New Brunswick
Subjects
Civil procedure
Constitutional law
Courts
Evidence
Notes
SCC Case Information: 30006, 30148, 29525, 30477
Decision Content
SUPREME COURT OF CANADA
Citation: Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); 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] 2 S.C.R. 286, 2005 SCC 44
Date: 20050722
Docket: 30006, 30148, 29525, 30477
Between:
Provincial Court Judges’ Association of New Brunswick,
Honourable Judge Michael McKee and
Honourable Judge Steven Hutchinson
Appellants
v.
Her Majesty the Queen in Right of the Province of
New Brunswick, as represented by the Minister of Justice
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of
British Columbia, Attorney General for Saskatchewan,
Attorney General of Alberta, Canadian Association of
Provincial Court Judges, Ontario Conference of Judges
and Federation of Law Societies of Canada
Interveners
and between:
Ontario Judges’ Association, Ontario Family Law
Judges’ Association and Ontario Provincial Court
(Civil Division) Judges’ Association
Appellants
v.
Her Majesty the Queen in Right of the Province of
Ontario, as represented by the Chair of Management Board
Respondent
‑ and ‑
Attorney General of Quebec, Attorney General of Alberta,
Canadian Bar Association and Federation of Law
Societies of Canada
Interveners
and between:
Her Majesty the Queen in Right of Alberta and
the Lieutenant Governor in Council
Appellants
v.
Chereda Bodner, Robert Philp, Timothy Stonehouse,
William Martin, Waldo B. Ranson, Glenn Morrison, Q.C.,
Johnathan H.B. Moss, David M. Duggan, Mark W. Gruman,
Patrick McIlhargy, John R. Shaw and Gregory Francis
Respondents
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of
New Brunswick, Attorney General of British Columbia,
Attorney General for Saskatchewan, Canadian Superior
Court Judges Association, Ontario Conference of Judges,
Conférence des juges du Québec, Canadian Association of
Provincial Court Judges, Association of Justices of the Peace
of Ontario, Judicial Justice of the Peace Association of
British Columbia and Federation of Law Societies of Canada
Interveners
and between:
Attorney General of Quebec and Minister of Justice of Quebec
Appellants
v.
Conférence des juges du Québec, Maurice Abud, Claude C.
Boulanger, Marc Vanasse, Gilles Gagnon, Jacques R. Roy,
Gérald Laforest, Jean-François Gosselin, Hubert Couture,
Michael Sheehan, Yvan Mayrand, Dominique Slater, Guy
Gagnon, Mireille Allaire, Anne Laberge, Armando Aznar,
Jean-Pierre Lortie, Guy Lecompte, Huguette St-Louis, Rémi
Bouchard, Michel Jasmin, Jacques Lachapelle, Louise
Provost, Michèle Rivet, Paule Lafontaine, Rosaire Larouche,
Réal R. Lapointe, Claude Chicoine, Céline Pelletier,
René de la Sablonnière, Gabriel de Pokomandy, Jean R.
Beaulieu, Michel Beauchemin, Jacques Trudel, Denis
Bouchard, Ruth Veillet, Gilson Lachance, Claude Parent,
Michel L. Auger, Lise Gaboury and Jean Alarie
Respondents
- and -
Attorney General of New Brunswick and
Federation of Law Societies of Canada
Interveners
And between:
Attorney General of Quebec and Minister of Justice of Quebec
Appellants
v.
Morton S. Minc, Denis Boisvert, Antonio Discepola,
Yves Fournier, Gilles Gaumond, Louise Baribeau,
Jean-Pierre Bessette, Pierre D. Denault, René Déry,
Gérard Duguay, Pierre Fontaine, Pierre Gaston,
Denis Laliberté, Louis-Jacques Léger, Jean Massé,
Evasio Massignani, Ronald Schachter, Bernard Caron,
Jean Charbonneau and Raymonde Verreault
Respondents
- and -
Attorney General of New Brunswick and
Federation of Law Societies of Canada
Interveners
And between:
Conférence des juges municipaux du Québec
Appellant
v.
Conférence des juges du Québec and
Attorney General of Quebec
Respondents
‑ and ‑
Attorney General of New Brunswick and
Federation of Law Societies of Canada
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 171)
The Court
NOTE: The amendments to paras. 134, 152 and 171, issued on July 28, 2005, are included in these reasons.
______________________________
Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); 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] 2 S.C.R. 286, 2005 SCC 44
Provincial Court Judges’ Association of New Brunswick,
Honourable Judge Michael McKee and
Honourable Judge Steven Hutchinson Appellants
v.
Her Majesty The Queen in Right of the Province of
New Brunswick, as represented by the Minister of Justice Respondent
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of
British Columbia, Attorney General for Saskatchewan,
Attorney General of Alberta, Canadian Association of
Provincial Court Judges, Ontario Conference of Judges
and Federation of Law Societies of Canada Interveners
and between
Ontario Judges’ Association, Ontario Family Law
Judges’ Association and Ontario Provincial Court
(Civil Division) Judges’ Association Appellants
v.
Her Majesty The Queen in Right of the Province of
Ontario, as represented by the Chair of Management Board Respondent
and
Attorney General of Quebec, Attorney General of Alberta,
Canadian Bar Association and Federation of Law
Societies of Canada Interveners
and between
Her Majesty The Queen in Right of Alberta and
the Lieutenant Governor in Council Appellants
v.
Chereda Bodner, Robert Philp, Timothy Stonehouse,
William Martin, Waldo B. Ranson, Glenn Morrison, Q.C.,
Johnathan H.B. Moss, David M. Duggan, Mark W. Gruman,
Patrick McIlhargy, John R. Shaw and Gregory Francis Respondents
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of
New Brunswick, Attorney General of British Columbia,
Attorney General for Saskatchewan, Canadian Superior
Court Judges Association, Ontario Conference of Judges,
Conférence des juges du Québec, Canadian Association of
Provincial Court Judges, Association of Justices of the Peace
of Ontario, Judicial Justices Association of
British Columbia and Federation of Law Societies of Canada Interveners
and between
Attorney General of Quebec and Minister of Justice of Quebec Appellants
v.
Conférence des juges du Québec, Maurice Abud,
Claude C. Boulanger, Marc Vanasse, Gilles Gagnon,
Jacques R. Roy, Gérald Laforest, Jean‑François Gosselin,
Hubert Couture, Michael Sheehan, Yvan Mayrand,
Dominique Slater, Guy Gagnon, Mireille Allaire,
Anne Laberge, Armando Aznar, Jean‑Pierre Lortie,
Guy Lecompte, Huguette St‑Louis, Rémi Bouchard,
Michel Jasmin, Jacques Lachapelle, Louise Provost,
Michèle Rivet, Paule Lafontaine, Rosaire Larouche,
Réal R. Lapointe, Claude Chicoine, Céline Pelletier,
René de la Sablonnière, Gabriel de Pokomandy,
Jean-R. Beaulieu, Michel Beauchemin,
Jacques Trudel, Denis Bouchard, Ruth Veillet,
Gilson Lachance, Claude Parent, Michel L. Auger,
Lise Gaboury and Jean Alarie Respondents
and
Attorney General of New Brunswick and
Federation of Law Societies of Canada Interveners
and between
Attorney General of Quebec and Minister of Justice of Quebec Appellants
v.
Morton S. Minc, Denis Boisvert, Antonio Discepola,
Yves Fournier, Gilles Gaumond, Louise Baribeau,
Jean‑Pierre Bessette, Pierre D. Denault, René Déry,
Gérard Duguay, Pierre Fontaine, Pierre Gaston,
Denis Laliberté, Louis‑Jacques Léger, Jean Massé,
Evasio Massignani, Ronald Schachter, Bernard Caron,
Jean Charbonneau and Raymonde Verreault Respondents
and
Attorney General of New Brunswick and
Federation of Law Societies of Canada Interveners
and between
Conférence des juges municipaux du Québec Appellant
v.
Conférence des juges du Québec et al. and
Attorney General of Quebec Respondents
and
Attorney General of New Brunswick and
Federation of Law Societies of Canada Interveners
Indexed as: Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General)
Neutral citation: 2005 SCC 44.
File Nos.: 30006, 30148, 29525, 30477.
2004: November 9, 10; 2005: July 22.*
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for new brunswick
on appeal from the court of appeal for ontario
on appeal from the court of appeal for alberta
on appeal from the court of appeal for quebec
Constitutional law — Judicial independence — Judicial remuneration — Nature of judicial compensation commissions and their recommendations — Obligation of government to respond to recommendations — Scope of judicial review of government’s response — Remedies.
Constitutional law — Judicial independence — Judicial remuneration — Government departing from compensation commission’s recommendations on salary and benefits — Whether government’s reasons for departing from recommendations satisfy rationality test — Three‑stage analysis for determining rationality of government’s response.
Evidence — Admissibility — Judicial review of government’s response to compensation commission’s recommendations — Government seeking to have affidavits admitted in evidence — Whether affidavits admissible — Whether affidavits introduce evidence and facts not contained in government’s response.
Courts — Judges — Remuneration — Compensation committee — Mandate — Committee recommending elimination of salary parity between judges of Court of Québec and municipal court judges — Whether committee had mandate to consider parity issue.
Civil procedure — Application for leave to intervene in Court of Appeal — Conférence des juges municipaux du Québec not mounting a court challenge to government’s response to compensation committee’s recommendations on salary of municipal court judges outside Laval, Montreal and Quebec City — Conférence unsuccessfully seeking leave to intervene in related cases at Court of Appeal — Whether leave to intervene should have been granted.
These appeals raise the question of judicial independence in the context of judicial remuneration, and the need to clarify the principles of the compensation commission process in order to avoid future conflicts.
In New Brunswick, a commission established under the Provincial Court Act recommended increasing the salary of Provincial Court judges from $142,000 in 2000 to approximately $169,000 in 2003. The Government rejected this recommendation, arguing (1) that the Commission had misunderstood its mandate; (2) that it was inappropriate to link the Provincial Court judges’ salary to that of federally appointed judges; and (3) that the judges’ existing salary was adequate. The appellant Association applied for judicial review of the Government’s response, and the Government successfully applied to have four affidavits admitted in evidence. On the salary issue, the reviewing judge found the Government’s reasons for rejecting the Commission’s recommendation to be rational. The Court of Appeal reversed the reviewing judge’s decision on the admissibility of the affidavits, but upheld his decision on the salary issue.
In Ontario, the remuneration commission made a binding recommendation that a salary increase of approximately 28 percent over three years be awarded and also made certain optional pension recommendations. Ontario retained an accounting firm to determine the cost of the pension options and subsequently refused to adopt any of the pension recommendations, listing several reasons, including: (1) that the 28 percent salary increase, which had automatically increased the value of the pension by 28 percent, was appropriate; (2) that no significant demographic changes had occurred since the 1991 review of the pension plan; and (3) that the Government’s current fiscal responsibilities required a continued commitment to fiscal restraint. The judges applied for judicial review. In support of its position, Ontario filed affidavits from the accounting firm and they were held to be admissible. The Divisional Court dismissed the application, holding that Ontario’s reasons for rejecting the pension recommendations were clear, logical and relevant. The Court of Appeal upheld the decision.
In Alberta, the compensation commission issued a report recommending, among other things, a substantial increase in salary for Justices of the Peace. Although Alberta accepted that salaries and per diem rates ought to be increased, it rejected the specific increases recommended by the Commission and proposed a modified amount. Alberta’s reasons stressed that it had a duty to manage public resources and act in a fiscally responsible manner, and that the overall level of increase recommended was greater than that of other publicly funded programs and significantly exceeded those of individuals in comparative groups. The Court of Queen’s Bench allowed the respondents’ application challenging the constitutionality of the changes, holding that Alberta’s reasons for rejecting the Commission’s recommendations did not pass the test of simple rationality. The Court of Appeal upheld the decision.
In Quebec, the judicial compensation committee established under the Courts of Justice Act recommended raising the salary of judges of the Court of Québec from $137,000 to $180,000 and adjusting their pension. The report also recommended eliminating the salary parity of municipal court judges in Laval, Montreal and Quebec City with judges of the Court of Quebec and suggested a lower pay scale. A second panel of the Committee addressed the compensation of judges of the municipal courts to which the Act respecting municipal courts applies — namely, the judges of municipal courts outside Laval, Montreal and Quebec City — and, on the assumption that parity should be abandoned, set the fee schedule at a scale reflecting responsibilities less onerous than those of full‑time judges. In its response, the Government proposed that the most important recommendations be rejected. It limited the initial salary increase of judges of the Court of Quebec to 8 percent, with small additional increases in 2002 and 2003. The response accepted the elimination of parity for municipal judges, limited the raise in their salaries to 4 percent in 2001 and granted them the same adjustments as judges of the Court of Quebec in 2002 and 2003. It accordingly adjusted the fees payable to judges of municipal courts to which the Act respecting municipal courts applies rather than accepting the fee scales recommended by the Committee. The Conférence des juges du Québec, which represents the judges of the Court of Québec and the judges of the municipal courts of Laval, Montreal and Quebec City, challenged the Government’s response in court. Both the Superior Court and the Court of Appeal held that the response did not meet the test of rationality. The Conférence des juges municipaux du Québec, which represents municipal court judges outside Laval, Montreal and Quebec City and which had not challenged the Government’s response, was denied leave to intervene in the Court of Appeal.
Held: The appeals in the New Brunswick and Ontario cases should be dismissed.
Held: The appeal in the Alberta case should be allowed.
Held: The appeals of the Attorney General of Quebec and the Minister of Justice of Quebec should be dismissed. Those portions of the orders in the courts below which are not in accordance with these reasons must be set aside and the matter must be remitted to the Government of Quebec and the National Assembly for reconsideration in accordance with these reasons.
Held: The appeal of the Conférence des juges municipaux du Québec should be allowed in part, and the application for leave to intervene should be granted.
General Principles
Judicial salaries can be maintained or changed only by recourse to a commission that is independent, objective and effective. Unless the legislature provides otherwise, a commission’s report is consultative, not binding. Its recommendations must be given weight, but the government retains the power to depart from the recommendations as long as it justifies its decision with rational reasons in its response to the recommendations. Reasons that are complete and that deal with the commission’s recommendations in a meaningful way will meet the standard of rationality. The reasons must also rely upon a reasonable factual foundation. If different weights are given to relevant factors, this difference must be justified. The use of a particular comparator must also be explained. If it is called upon to justify its decision in a court of law, the government may not advance reasons other than those mentioned in its response, though it may provide more detailed information with regard to the factual foundation it has relied upon. [8] [21] [26‑27]
The government’s response is subject to a limited form of judicial review by the superior courts. The reviewing court is not asked to determine the adequacy of judicial remuneration but must focus on the government’s response and on whether the purpose of the commission process has been achieved. A three‑stage analysis for determining the rationality of the government’s response should be followed: (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? (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? [29‑31]
If the reviewing court concludes that the commission process has not been effective, the appropriate remedy will generally be to return the matter to the government for reconsideration. If problems can be traced to the commission, the matter can be referred back to it. Courts should avoid issuing specific orders to make the recommendations binding unless the governing statutory scheme gives them that option. [44]
New Brunswick
Although the part of the Government’s response questioning the Commission’s mandate is not legitimate, the portion relating to the adequacy of the judges’ existing salary and the excessiveness of the recommended raise meets the standard of rationality. First, the Government’s reasons on these two points cannot be characterized as being purely political or as an attempt to avoid the process, and there is no suggestion that the Government has attempted to manipulate the judiciary. Second, the Government’s response does not lack a reasonable factual foundation. While some parts of the response may appear dismissive, others have a rational basis. On the one hand, the Government’s rejection of the recommended increase on the basis that it is excessive is amply supported by a reasonable factual foundation. On the other hand, the arguments in support of the adequacy of the current salary were not properly dealt with by the Commission. Consequently, the Government was justified in restating its position that the existing salary was sufficient to attract qualified candidates. The Government’s reliance on this factual foundation was reasonable. Third, while the Government’s justification for its departure from the recommendations is unsatisfactory in several respects, the response, viewed globally and with deference, shows that it took the process seriously. [67‑69] [76] [81] [83]
The affidavits filed by the Government before the reviewing judge were admissible. Although all the reasons upon which the Government relies in rejecting the Commission’s recommendations must be stated in its public response, these affidavits do not advance arguments that were not previously raised. They simply go into the specifics of the factual foundation relied upon by the Government. [62] [64]
Ontario
The Ontario government’s reasons rejecting the Commission’s optional pension recommendations pass the rationality test. The reasons outlined in the Government’s response do not reveal political or discriminatory motivations or any improper motive. They reveal a consideration of the judicial office and an intention to deal with it appropriately. Also, Ontario relied upon a reasonable factual foundation by alleging the need for fiscal restraint and suggesting that no significant demographic change had occurred warranting a change to the pension plan structure. Lastly, in its reasons, examined globally, Ontario has clearly respected the commission process, taken it seriously and given it a meaningful effect. Ontario’s engagement of an accounting firm was not a distortion of the process but, rather, demonstrates Ontario’s good faith and the serious consideration given to the Commission’s recommendations. [95‑101]
The admission of the accounting firm’s affidavits was proper. These affidavits do not add a new position. They merely illustrate Ontario’s commitment to taking the Commission’s recommendations seriously. [103]
Alberta
The judicial independence of Justices of the Peace warrants the same degree of constitutional protection that is provided by an independent, objective commission. Since Alberta has already provided an independent commission process through the Justices of the Peace Compensation Commission Regulation, this process must be followed. [121]
Alberta’s reasons for rejecting the specific level of salary increase satisfy the rationality test. The reasons do not reveal political or discriminatory motivations, and are therefore legitimate. They consider the overall level of increase recommended, comment upon the Government’s responsibility to properly manage fiscal affairs, and examine various comparator groups. The reasons illustrate Alberta’s desire to compensate its Justices of the Peace in a manner consistent with the nature of the office. They clearly state the reasons for variation and explain why Alberta attributed different weights to the comparator groups. Further, the factual basis upon which the Government sought to rely is indicated and its reliance is, for the most part, rational. In its reasons, Alberta discusses general fiscal policy, various comparator groups, and the roles and responsibilities of Justices of the Peace. Finally, viewed globally, it appears that the process of the Commission, as a consultative body created to depoliticize the issue of judicial remuneration, has been effective. [122‑126] [128] [131]
Quebec
The Government’s response does not meet the standard of rationality. While the response does not evidence any improper political purpose or intent to manipulate or influence the judiciary, it fails to address the Committee’s most important recommendations and the justifications given for them. The Government appears to have been content to restate its original position before the Committee, and in particular the point that no substantial salary revision was warranted because the recommendations of the previous committee, which led to a substantial increase in judges’ salaries, had just been implemented. Once the Committee had decided to conduct a broad review of the judicial compensation of provincial judges, as it was entitled to do, the constitutional principles governing the response required the Government to give full and careful attention to the recommendations and to the justifications given for them. The failure to do so impacted on the validity of the essentials of the response. [158‑159] [162] [164]
With respect to the issue of salary parity for municipal court judges, the Government did not have to state the reasons for its agreement with recommendations which were well explained. Moreover, the Committee did not exceed its mandate or breach any principle of natural justice in examining the issue of parity. [166‑168]
The appeal and the application for leave to intervene of the Conférence des juges municipaux du Québec should be allowed for the sole purpose of declaring that the response is also void in respect of the compensation of the judges of municipal courts to which the Act respecting municipal courts applies. The recommendations concerning the three groups of judges are closely linked, and the complete constitutional challenge launched by the other two groups of judges benefits the members of the Conférence. [169‑170]
Cases Cited
Applied: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; referred to: Valente v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; Conférence des juges du Québec v. Québec (Procureure générale), [2000] R.J.Q. 744; Conférence des juges du Québec v. Québec (Procureure générale), [2000] R.J.Q. 2803.
Statutes and Regulations Cited
Act respecting municipal courts, R.S.Q., c. C‑72.01.
Alberta Order in Council, 174/2000, s. 2, Sch. 1, 6, 7.
Courts of Justice Act, R.S.O. 1990, c. C.43, Schedule (Appendix A of Framework Agreement), para. 28.
Courts of Justice Act, R.S.Q., c. T‑16 [am. 1997, c. 84], ss. 246.29, 246.30, 246.31, 246.42, 246.43, 246.44.
Judicature Act, R.S.A. 1980, c. J‑1 [am. 1998, c. 18].
Justices of the Peace Compensation Commission Regulation, Alta. Reg. 8/2000, ss. 3(1), 5(1), 16, 21(2).
Provincial Court Act, R.S.N.B. 1973, c. P‑21, s. 22.03(1), (6).
APPEAL from a judgment of the New Brunswick Court of Appeal (Turnbull, Larlee and Robertson JJ.A.) (2003), 231 D.L.R. (4th) 38, 260 N.B.R. (2d) 201, 5 Admin. L.R. (4th) 45, 40 C.P.C. (5th) 207, [2003] N.B.J. No. 321 (QL), 2003 NBCA 54, affirming a decision of Boisvert J. (2002), 213 D.L.R. (4th) 329, 249 N.B.R. (2d) 275, 42 Admin. L.R. (3d) 275, [2002] N.B.J. No. 156 (QL), 2002 NBQB 156. Appeal dismissed.
APPEAL from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O. and Borins and MacPherson JJ.A.) (2003), 67 O.R. (3d) 641, 233 D.L.R. (4th) 711, 8 Admin. L.R. (4th) 222, 38 C.C.P.B. 118, 112 C.R.R. (2d) 58, [2003] O.J. No. 4155 (QL), affirming a decision of O’Driscoll, Then and Dunnet JJ. (2002), 58 O.R. (3d) 186, 157 O.A.C. 367, 33 C.C.P.B. 83, [2002] O.J. No. 533 (QL). Appeal dismissed.
APPEAL from a judgment of the Alberta Court of Appeal (Côté, Picard and Paperny JJ.A.) (2002), 222 D.L.R. (4th) 284, 16 Alta. L.R. (4th) 244, 317 A.R. 112, 284 W.A.C. 112, 36 C.P.C. (5th) 1, [2003] 9 W.W.R. 637, [2002] A.J. No. 1428 (QL), 2002 ABCA 274, affirming a decision of Clark J. (2001), 93 Alta. L.R. (3d) 358, 296 A.R. 22, 10 C.P.C. (5th) 157, [2001] 10 W.W.R. 444, [2001] A.J. No. 1033 (QL), 2001 ABQB 650, with supplementary reasons (2001), 3 Alta. L.R. (4th) 59, 300 A.R. 170, 19 C.P.C. (5th) 242, [2002] 8 W.W.R. 152, [2001] A.J. No. 1565 (QL), 2001 ABQB 960. Appeal allowed.
APPEAL from a judgment of the Quebec Court of Appeal (Robert C.J.Q. and Brossard, Proulx, Rousseau‑Houle and Morissette JJ.A.), [2004] R.J.Q. 1450, [2004] Q.J. No. 6622 (QL), affirming a decision of Guibault J., [2003] R.J.Q. 1488, [2003] Q.J. No. 3947 (QL). Appeal dismissed.
APPEALS from judgments of the Quebec Court of Appeal (Robert C.J.Q. and Brossard, Proulx, Rousseau‑Houle and Morissette JJ.A.), [2004] R.J.Q. 1475, [2004] Q.J. No. 6626 (QL) and [2004] Q.J. No. 6625 (QL), reversing a decision of Guibault J., [2003] R.J.Q. 1510, [2003] Q.J. No. 3948 (QL). Appeals dismissed.
APPEAL from a judgment of the Quebec Court of Appeal (Robert C.J.Q. and Brossard, Proulx, Rousseau‑Houle and Morissette JJ.A.), [2004] R.J.Q. 1450, [2004] Q.J. No. 6622 (QL), dismissing the intervention of the Conférence des juges municipaux du Québec. Appeal allowed in part.
Susan Dawes and Robb Tonn, for the appellants the Provincial Court Judges’ Association of New Brunswick, the Honourable Judge Michael McKee and the Honourable Judge Steven Hutchinson.
Gaétan Migneault and Nancy Forbes, for the respondent Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Justice.
C. Michael Mitchell and Steven M. Barrett, for the appellants the Ontario Judges’ Association, the Ontario Family Law Judges’ Association and the Ontario Provincial Court (Civil Division) Judges’ Association , and the intervener the Ontario Conference of Judges.
Lori R. Sterling, Sean Hanley and Arif Virani, for the respondent Her Majesty the Queen in Right of the Province of Ontario, as represented by the Chair of Management Board.
Phyllis A. Smith, Q.C., Kurt Sandstrom and Scott Chen, for the appellants Her Majesty the Queen in Right of Alberta and the Lieutenant Governor in Council.
Alan D. Hunter, Q.C., and S. L. Martin, Q.C., for the respondents Chereda Bodner et al.
Claude‑Armand Sheppard, Annick Bergeron and Brigitte Bussières, for the appellant/respondent/intervener the Attorney General of Quebec and the appellant the Minister of Justice of Quebec.
Raynold Langlois, Q.C., and Chantal Chatelain, for the respondent/intervener Conférence des juges du Québec, the respondents Maurice Abud et al., and the intervener the Canadian Association of Provincial Court Judges.
William J. Atkinson and Michel Gagné, for the respondents Morton S. Minc et al.
André Gauthier and Raymond Nepveu, for the appellant Conférence des juges municipaux du Québec.
Robert J. Frater and Anne M. Turley, for the intervener the Attorney General of Canada.
Janet Minor, Sean Hanley and Arif Virani, for the intervener the Attorney General of Ontario.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
George H. Copley, Q.C., and Jennifer Button, for the intervener the Attorney General of British Columbia.
Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Kurt Sandstrom, for the intervener the Attorney General of Alberta.
F. William Johnson, Q.C., for the intervener the Canadian Bar Association.
Louis Masson, Michel Paradis and Valerie Jordi, for the intervener the Federation of Law Societies of Canada.
Pierre Bienvenu, for the intervener the Canadian Superior Court Judges Association.
Paul B. Schabas and Catherine Beagan Flood, for the intervener the Association of Justices of the Peace of Ontario.
Written submissions only by W. S. Berardino, Q.C., for the intervener the Judicial Justices Association of British Columbia.
The following is the judgment delivered by
The Court —
I. Introduction
1 These appeals again raise the important question of judicial independence and the need to maintain independence both in fact and in public perception. Litigants who engage our judicial system should be in no doubt that they are before a judge who is demonstrably independent and is motivated only by a search for a just and principled result.
2 The concept of judicial independence has evolved over time. Indeed, “[c]onceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence . . . . Opinions differ on what is necessary or desirable, or feasible”: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 692, per Le Dain J.
3 This evolution is evident in the context of judicial remuneration. In Valente, at p. 706, Le Dain J. held that what was essential was not that judges’ remuneration be established by an independent committee, but that a provincial court judge’s right to a salary be established by law. By 1997 this statement had proved to be incomplete and inadequate. In Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Reference”), this Court held that independent commissions were required to improve the process designed to ensure judicial independence but that the 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.
II. General Principles
A. The Principle of Judicial Independence
4 The basis for the principle of judicial independence can be found in both our common law and the Canadian Constitution; see Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 70-73; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at paras. 18-23. Judicial independence has been called “the lifeblood of constitutionalism in democratic societies” (Beauregard, at p. 70), and has been said to exist “for the benefit of the judged, not the judges” (Ell, at para. 29). Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p. 70.
5 There are two dimensions to judicial independence, one individual and the other institutional. The individual dimension relates to the independence of a particular judge. The institutional dimension relates to the independence of the court the judge sits on. Both dimensions depend upon objective standards that protect the judiciary’s role: Valente, at p. 687; Beauregard, at p. 70; Ell, at para. 28.
6 The judiciary must both be and be seen to be independent. Public confidence depends on both these requirements being met: Valente, at p. 689. “Judicial independence serves not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice”: Ell, at para. 29.
7 The components of judicial independence are: security of tenure, administrative independence and financial security; see Valente, at pp. 694, 704 and 708; the Reference, at para. 115; Ell, at para. 28.
8 The Reference, at paras. 131-35, states that financial security embodies three requirements. First, judicial salaries can be maintained or changed only by recourse to an independent commission. Second, no negotiations are permitted between the judiciary and the government. Third, salaries may not fall below a minimum level.
9 The Reference arose when salaries of Provincial Court judges in Prince Edward Island were statutorily reduced as part of the government’s budget deficit reduction plan. Following this reduction, numerous accused challenged the constitutionality of their proceedings in Provincial Court alleging that the court had lost its status as an independent and impartial tribunal. Similar cases involving Provincial Court judges in other provinces were joined in the Reference. Prior to the Reference, salary review was between Provincial Court judges, or their association, and the appropriate minister of the provincial Crown. Inevitably, disagreements arose.
10 The often spirited wage negotiations and the resulting public rhetoric had the potential to deleteriously affect the public perception of judicial independence. However independent judges were in fact, the danger existed that the public might think they could be influenced either for or against the government because of issues arising from salary negotiations. The Reference reflected the goal of avoiding such confrontations. Lamer C.J.’s hope was to “depoliticize” the relationship by changing the methodology for determining judicial remuneration (para. 146).
11 Compensation commissions were expected to become the forum for discussion, review and recommendations on issues of judicial compensation. Although not binding, their recommendations, it was hoped, would lead to an effective resolution of salary and related issues. Courts would avoid setting the amount of judicial compensation, and provincial governments would avoid being accused of manipulating the courts for their own purposes.
12 Those were the hopes, but they remain unfulfilled. In some provinces and at the federal level, judicial commissions appear, so far, to be working satisfactorily. In other provinces, however, a pattern of routine dismissal of commission reports has resulted in litigation. Instead of diminishing friction between judges and governments, the result has been to exacerbate it. Direct negotiations no longer take place but have been replaced by litigation. These regrettable developments cast a dim light on all involved. In order to avoid future conflicts such as those at issue in the present case, the principles of the compensation commission process elaborated in the Reference must be clarified.
B. The Fundamental Principles of the Commission Process
13 The principles stated in the Reference remain valid. The Reference focussed on three themes: the nature of compensation commissions and their recommendations; the obligation of the government to respond; and the scope of judicial review of the government’s response and the related remedies.
(1) The Nature of the Compensation Commission and Its Recommendations
14 The Reference laid the groundwork to ensure that provincial court judges are independent from governments by precluding salary negotiations between them and avoiding any arbitrary interference with judges’ remuneration. The commission process is an “institutional sieve” (Reference, at paras. 170, 185 and 189) — a structural separation between the government and the judiciary. The process is neither adjudicative interest arbitration nor judicial decision making. Its focus is on identifying the appropriate level of remuneration for the judicial office in question. All relevant issues may be addressed. The process is flexible and its purpose is not simply to “update” the previous commission’s report. However, in the absence of reasons to the contrary, the starting point should be the date of the previous commission’s report.
15 Each commission must make its assessment in its own context. However, this rule does not mean that each new compensation commission operates in a void, disregarding the work and recommendations of its predecessors. The reports of previous commissions and their outcomes form part of the background and context that a new compensation committee should consider. A new commission may very well decide that, in the circumstances, its predecessors conducted a thorough review of judicial compensation and that, in the absence of demonstrated change, only minor adjustments are necessary. If on the other hand, it considers that previous reports failed to set compensation and benefits at the appropriate level due to particular circumstances, the new commission may legitimately go beyond the findings of the previous commission, and after a careful review, make its own recommendations on that basis.
16 It is a constitutional requirement that commissions be independent, objective and effective. One requirement for independence is that commission members serve for a fixed term which may vary in length. Appointments to a commission are not entrusted exclusively to any one of the branches of government. The appointment process itself should be flexible. The commission’s composition is legis