B.C. Supreme Court quashes province’s move to reject proposed increases and orders reconsideration
The B.C. Supreme Court has quashed the provincial government’s decision to reject the recommendations of its Judicial Compensation Commission on salary increases for Provincial Court judges, asserting the importance of judicial independence in the process to determine salaries.
The ruling, released August 27 and published September 1, recognizes what the Supreme Court of Canada called in a 1997 ruling the “constitutional imperative” of depoliticizing how the executive and legislative branches of government address the matter of compensation of the judicial branch. The SCC said this imperative means courts “not become entangled in the politics of remuneration from the public purse.”
B.C. Supreme Court Chief Justice Christopher Hinkson, in concluding that the province failed to conform to the standard set out in the province’s Judicial Compensation Act, said the Legislative Assembly’s unanimous decision to reject the JCC’s recommendations on salary increases and to substitute its own figures, was based in part on “erroneous representations” by the Opposition Justice Critic, which were not corrected by the Attorney General.
Hinkson said the Opposition Justice Critic incorrectly said provincial court justices “are public servants, and . . . deserve the usual treatment for members of the public service in terms of orderly resolution of their compensation.”
The Chief Justice said: “I am troubled by the speech of the Opposition Justice Critic, and the failure on the part of the Attorney General to correct the misstatements made to the Legislative Assembly by the Opposition Justice Critic. I am unable to conclude that the comments, uncorrected, did not introduce a failure to recognize the importance of the judicial office and judicial independence into the vote of the Legislative Assembly.”
While counsel for the Attorney General did concede before the court that comments made by the Opposition Justice Critic were incorrect, Hinkson said they were not corrected before the Legislative Assembly voted on the motion to reject the JCC’s salary recommendations.
He also noted that the legislature’s decision did not respect the unique position of members of the judicial branch of government, who are entitled to “other than the usual treatment for members of the public service.”
The background to this issue dates to 1997 when the Supreme Court of Canada set up an independent commission system to replace the practice of provincial court judges negotiating directly with the government.
The intention was to ensure the separation of the judiciary and the executive branch of government. It was also set up to preserve judges’ independence and to avoid the constant litigation that followed disputes between government and judges about fair compensation.
While the top court said the JCC’s recommendations on compensation would not be binding on governments, they would publicly have to explain the reasoning for rejecting the recommendations.
In 2017, B.C.s Attorney General moved a resolution to reject the JCC’s compensation proposal of an 11.5 per cent increases in judges’ salaries over three years. The JCC’s 2016 report had noted that B.C. provincial court judges ranked 11th among Canada’s provinces and territories, eighth if the territories were not included.
The commission’s salary recommendations would have put the province’s provincial court judges in fourth place, “which is appropriate given British Columbia’s financial position, economic conditions, population size and budget.”
Over a three-year period between April 1, 2017, and April 1, 2019, the salary for puisne judges, based on the JCC recommendations, would have risen to $281,251 from $273,000, while the Chief Justice would receive 112 per cent of that figure, and associate Chief Justices 108 per cent.
However, the B.C. Legislative Assembly rejected the JCC’s recommendations and reduced the increase to 7.02 per cent ($262,000 on April 1, 2017 climbing to $270,000 on April 1, 2019 for puisne judges) with the government arguing that other government employees would be getting increases of only 1.5 to 2 per cent, on average, and in some cases, no increase.
The government estimated the fiscal impact of the JCC’s salary recommendations would be $12.9 million, while the substituted salaries would have had an impact of $7.15 million. The government also argued that it was not politicizing judicial compensation by substituting its own salary figures and that such decisions made by the government are only political in the broadest definition of how public funds are allocated.
Hinkson said that while it was “tempting” for him to provide his own salary recommendations or order that the JCC’s compensation figures be imposed, he was “not prepared to constrain the Legislative Assembly in its reconsideration” of the JCC recommendations. As a result, he ordered that the government’s response be sent back to the Attorney General for reconsideration in accordance with the principles of his decision.
Joseph Arvay, the lawyer who argued on behalf of the judges’ association, said in an email to Canadian Lawyer: “I think one of the most important aspects of the decision is the fact the Legislative Assembly doesn’t get to simply reject the recommendations of the JCC with a ‘compromise’ between what the JCC recommended and what the government might have preferred and without explaining how the ‘substituted’ salaries were arrived at.”
Arvay added that one of the practices that lead the Supreme Court of Canada, back in 1997, to require the establishment of judicial compensation commissions was the unseemliness of “horse-trading” between the government and the judges.
“In my view, what the government does when it seeks this sort of ‘compromise’ is to effectively horse trade with the JCC, or at least with the judges indirectly. This is not a legitimate response and it does not respect the constitutional process.”
This is now the fourth successful judicial review that the Provincial Court Judges Association of B.C. has brought against the government for its now “almost routine” rejection of JCC recommendations.
As part of the latest dispute, in July, the Supreme Court of Canada ruled that B.C. government cabinet documents about increases to provincial court judges’ salaries can’t be released. The superior and appeal courts in B.C. had ordered disclosure of the document, but Justice Andromache Karatkatsanis of the SCC, writing for the top court, quashed the disclosure order.
“Since there will be a strong public interest in keeping a document concerning cabinet deliberations confidential, it must be outweighed by a still stronger public interest to warrant document disclosure,” Karatkatsanis wrote. The judges’ association provided no evidence the documents would be relevant, he said.
However, in dealing with a similar dispute in Nova Scotia, Karakatsanis overturned an order for the documents to be disclosed but allowed only two sections of the cabinet document to be made public.
One was a paragraph that notes “any salary increases provided to any group may have impacts on current labour negotiations for the government.”
The other section is a communications plan prepared for the legislature that suggests public-sector unions may use the salary increase for judges to bolster their case for higher wages.
“It is far from clear,” Karatkatsanis wrote, “that the government can depart from the commission’s recommendations simply because it fears that accepting them would have a detrimental impact on public sector labour negotiations.”