Alberta Provincial Judges’ Association v Alberta, 2021 ABQB 199

Court of Queen’s Bench of Alberta Citation: Alberta Provincial Judges’ Association v Alberta, 2021 ABQB 199 Date: 20210316 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 Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] The 2017 Judicial Compensation Commission [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 JCC released its initial report on May 9, 2019, and its final report on May 23, 2019 [JCC Report]. [ 3 ] The JCC Report made recommendations, including 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, to $296,382;

b) effective April 1, 2018, to $302,304;

c) effective April 1, 2019, to $309,500; and

d) effective April 1, 2020, to $318,500. [4] On September 13, 2019, the Lieutenant Governor in Council [LGIC] made Order in Council 16/2019 [Government Responseto the JCC Report], which rejected the recommendation for increased salaries and substituted a four-year freeze on judicial salaries. Thereasons for rejecting the salary recommendation are set out in the Appendix to the Government Response. [5] On November 25, 2019, the Alberta Provincial Judges’ Association [Association] filed an Originating Application forJudicial Review requesting an order quashing the Government Response to the JCC Report. [6] The Association brings this preliminary application for orders:

a) directing the Respondents to provide a further and better Certified Record of Proceedings [Record] that includes any Cabinetreport, briefing note or submission put before Cabinet concerning the 2017 JCC Report [Cabinet Document]; and

b) admitting the Affidavit of the Honourable Judge Philip John Maher, sworn on December 3, 2020 [Maher Affidavit], for the Court’sconsideration in relation to the Association’s application for judicial review of the Government Response. Principles Governing Production and Evidence on theApplication for Judicial Review [7] The application for judicial review of the Government Response to the JCC Report is a unique form of judicial review thatreflects the constitutional principles underlying judicial compensation commissions.

The principles were first articulated in Reference reRemuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 SCR 3.

The test to beapplied by a court tasked with determining the rationality of a government response to the recommendations of a judicial compensationcommittee was confirmed and expanded upon in Provincial Court Judges’ Assn of New Brunswick v New Brunswick; Ontario Judges’Assn v Ontario (Management Board) (Provincial Judges Reference); Bodner v Alberta; Conférence des juges du Québec v Quebec(Attorney General)); Minc v Quebec (Attorney General), 2005 SCC 44 [Bodner]. [8] The Bodner test requires the reviewing court to determine (at para 31): 1) Has the government articulated a legitimate reason for departing from the commission’s recommendation? 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 judicialindependence and depoliticizing the setting of judicial remuneration – been achieved? [9] The unique form of review gives rise to unique principles regarding the rules of evidence and production, as reviewed andelaborated in two recent Supreme Court of Canada decisions: British Columbia (Attorney General) v Provincial Court Judges’Association of British Columbia, 2020 SCC 20 [BCJA] and Nova Scotia (Attorney General) v Judges of the Provincial Court andFamily Court of Nova Scotia, 2020 SCC 21 [NSJA]. [10] In BCJA, the Supreme Court observed that the first two parts of the Bodner test “focus on the reasons given by governmentfor departing from the commission’s recommendations”: at para 37.

The third part of the test requires the court to take a globalperspective; however, the addition of this part was not meant “to expand the scope of review such that the Cabinet decision-makingprocess must necessarily be scrutinized in every case”: at para 39. [11] Evidence outside the government’s public reasons may have relevance for all parts of the Bodner test: [T]his does not mean that the government can hide behind reasons that conceal an improper or colourable purpose.

The ProvincialJudges Reference and Bodner cannot be interpreted to mean that as long as the government’s public reasons are facially legitimate andappear grounded in a reasonable factual foundation, the government could provide reasons that were not given in good faith.

Indeed, it isimplicit in the third part of the Bodner test itself that, presented with evidence that the government’s response is rooted in an improper orcolourable purpose and has accordingly fallen short of the constitutional benchmark set in this Court’s jurisprudence, the reviewing courtcannot simply accept the government’s formal response without further inquiry. BCJA at para 41. [12] The record on Bodner review reflects the issues before the court: The limited nature of Bodner review implies that the record for this type of review is narrower than it would be on ordinary judicialreview.

It also means that relevance must be assessed in relation to the specific issues that are the focus of the court’s inquiry on Bodnerreview: the legitimacy of the reasons given by government, the reasonableness of the factual foundation relied on by government, and therespect for the commission process by government such that the objectives of the process have been achieved. BCJA at para 47.

[ 13 ] The record “necessarily includes any submissions made to the commission by the government, judges and others; the commission’s report, including its recommendations; and the government’s response to the recommendations”: BCJA at para 53 . [ 14 ] As will be discussed below, the parties to the judicial review application may also file affidavit evidence relevant to the issues on the judicial review: BCJA at paras 54, 55 .

Principles Governing Production of the Cabinet Document: The Threshold Test [ 15 ] It was against this background, that the Supreme Court addressed the primary issue in BCJA , the production of a confidential Cabinet document. [ 16 ] The Court held that the requirement of relevance alone is not sufficient to protect the “competing constitutional imperatives” that arise in this context: at para 61. “[I]f relevance were the sole consideration, confidential Cabinet documents would routinely be part of the record in every Bodner review”: BCJA at para 70 .

Routine judicial inspection of confidential Cabinet documents would undermine Cabinet confidentiality, and “judicial inspection of a document that concerns Cabinet deliberation about the judiciary would undermine it more significantly […] judicial inspection is appropriate in this context only where it is strictly necessary”: BCJA at para 72 . [ 17 ] Therefore, a threshold test must be applied: 75 Before the reviewing court can examine the document, the party seeking Bodner review must first establish that there is some basis to believe that the Cabinet document in question may contain evidence which tends to show that the government failed to meet a requirement described in Bodner . 76 This threshold is met if the party seeking review can show that there is reason to believe that the Cabinet document may contain something that would undermine the validity of the government response.

This requires the party seeking review to point to something in the record, including otherwise admissible evidence, that supports its view that the document may tend to show that the government response failed to meet one or more parts of the test established in Bodner . 77 Meeting this threshold does not require the party to have knowledge or information about the content of the Cabinet submission. Nor does it require that the party point to something in the record that explicitly refers to the Cabinet submission or its contents.

It would be unfair to require the party to establish the contents of a confidential document… 78 The party can, however, rely on additional evidence and the rest of the record, including submissions to the commission, to support its contention that the threshold is met. For instance, the party might point to statements made by ministers or others that suggest that the government’s response may have been grounded in reasons other than those formally expressed, that the government relied on a flawed or incomplete factual foundation or that the government may have shown disrespect for the commission process.

The party may also be able to rely on additional evidence introduced by the government that suggests that a document concerning Cabinet deliberations may disclose reliance on improper purpose.

But it is not enough to simply say that the document was before the executive in its capacity as decision-maker or that it would provide additional background or context for the reviewing court. 79 If the party seeking review makes the requisite showing – that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner – the government must produce it for the court’s examination.

BCJA . [ 18 ] BCJA and its companion case, NSJA , shed some light on the application of the threshold test. [ 19 ] The test was not met in BCJA , where the evidence showed only that a Cabinet submission produced in a previous judicial review application some 10 years earlier, had revealed that the government relied on an inappropriate consideration on that occasion. “Something more would be required” to meet the threshold test: BCJA at para 90 . The applicant had failed to point to something more.

The Cabinet submission was not referred to in the government response or in a government affidavit, and there was nothing on the record that indicated that “the Cabinet submission may contain some evidence which tends to show that the government failed to meet a constitutional requirement”: BCJA at para 91 . [ 20 ] The test was met in NSJA . The government response referred in its

preamble to a report by the Attorney General to Cabinet. The Supreme Court noted that this reference “alone would likely not have been sufficient to meet the threshold test”; however, it was a factor to be considered: NSJA at para 45 . [ 21 ] Other factors that led the Court to find that the threshold test was met were found in the public government response itself. The government’s reasons repeatedly and strongly criticized the commission process and the recommendations.

The government response criticized the commission’s procedure as being based on an “adversarial interest arbitration” model, and warned that this could lead to a loss of public confidence in the independence of the commission. Further, while the response acknowledged that the commission could have provided valid reasons for not staying within the province’s fiscal plan, it also charged that the commission’s failure to stay within the plan was a usurpation of the authority of the Minister of Finance.

In addition, the government varied the commission’s recommendation substantially, and adopted a one percent increase to approximate salaries or revenue provided for other persons receiving public funds.

Application of the Threshold Test to the Cabinet Document [ 22 ] In this case, there is no explicit reference to the Cabinet Document in the Record. As pointed out by the Association, this is not a requirement ( BCJA at para 77 ); however, it was a factor that was considered in NSJA . [ 23 ] The Association has not pointed to any evidence outside the Record, such as a statement by a Minister or other government official, that suggests that the Cabinet Document may contain evidence which tends to show that the government failed to meet a requirement described in Bodner .

The Association’s arguments are based on the Government Response, and on Government submissions to the JCC which form part of the Record. [ 24 ] The Association submits that Government Response fails to meet the Bodner test in a number of respects, including: 1) failing to take sufficient account of the distinctive nature of judicial office; 2) relying on a proposed four-year salary freeze, after having acknowledged in submissions to the JCC that the proposal was not supported by criteria identified in the JCC Regulation ; 3) criticizing the JCC recommendations by repeating Government submissions made before the JCC, without engaging the JCC’s reasoning; 4) relying on information that could have been put before the JCC before it issued its final report, but was not; 5) departing significantly from the JCC’s recommendations, and implementing the same proposal it made in submissions to the JCC. [ 25 ] The Association summarizes its position on the threshold test as follows: The Applicant submits that the threshold test for judicial inspection of the Cabinet Document is decisively met by the analysis above.

The Government advanced a proposal for judicial salaries before the 2017 JCC that was rooted in its public sector labour relations policy and, when pressed, acknowledged to the JCC itself that its proposal was not supported by the objective statutory criterial the JCC was obliged to consider. The Government failed to put certain information to the JCC that it now relies upon in rejecting the JCC’s recommendations, and failed to allow the JCC an opportunity to remedy an alleged failure to address a particular issues [sic] in its analysis.

It has now rejected the JCC’s carefully considered salary recommendation in order to implement its own original proposal. The Reasons contain points which are a rehash of arguments which were made to and rejected by the JCC itself and, when critically examined, reveal themselves as a smokescreen designed to distract from the Government’s failure to respect the process. [ 26 ] I do not doubt that the Association has demonstrated an arguable case on the merits of the judicial review application.

The Government, while it has responded to each of the points raised by the Association, accepts that there is an arguable case. However, the BCJA threshold test requires a demonstration of more than an arguable case on the merits; it requires a demonstration that the Cabinet Document may contain evidence to support that case.

The Government submits that this requirement has not been met; that there is nothing in the Record which suggests a link to the Cabinet Document, or provides “a reason to believe that the Cabinet document may contain something that would undermine the validity of the government response” (citing BCJA at para 76 ). [ 27 ] The parties take different positions regarding the strictness of the threshold test. The Government submits that judicial inspection is appropriate “only where it is strictly necessary”: BCJA at para 72 .

The Association argues that the threshold test is “not a high bar”: BCJA at para 8 . [ 28 ] Whatever degree of strictness required on the threshold test, the test requires more than a demonstration of an arguable case on the merits. That would be similar in effect to a relevance test, which was held to be inadequate in this context: BCJA at paras 61, 70 .

This is equally true where the arguments on the merits raise concerns under the third part of the Bodner test; the addition of the third part of the test was not meant to “to expand the scope of review such that the Cabinet decision-making process must necessarily be scrutinized in every case”: BCJA at para 39 . [ 29 ] I agree with the Government that the threshold test requires a link to the Cabinet Document.

The link need not be explicit, and it does not require knowledge of the contents of the Cabinet Document, but there must be evidence or circumstances which support an inference that the Cabinet Document may contain evidence which tends to show that the Government failed to meet one of the Bodner requirements. [ 30 ] I also agree with the Government submission that the Government Response in this case is very different in tone and content from the Nova Scotia government response considered in NJSA .

The reasons there were much briefer, and did not provide detailed argument or evidence in support of very critical conclusions. The Supreme Court noted the government’s criticism of commission procedure as akin to an “adversarial interest arbitration” model. The government’s reasons on this point were conclusory, without any detail about the commission’s procedural choices or its reasons for those choices.

The Supreme Court also noted the contradiction in the reasons which acknowledged that the commission could depart from the province’s fiscal plan, but at the same time found that the commission’s failure to stay within the plan was a usurpation of the authority of the Minister of Finance.

The combination of comments that were highly critical of the commission, together with incomplete or inconsistent reasons in support, and a reference in the reasons to the Cabinet submission, supported an inference that the Cabinet submission might contain evidence tending to show that the government failed to meet a requirement described in Bodner . [ 31 ] There is no basis for a similar inference in this case. The public reasons given by the Government in this case are 37 pages long.

They set out five alleged failures by the JCC, and refer to new economic and fiscal evidence available since the release of the JCC Report. On each point, the reasons are detailed, and set out the factual foundation relied upon. There is not only no explicit reference to the Cabinet Document, there are no circumstances to support an inference that the Government’s public reasons may be undermined by something in the Cabinet Document.

[ 32 ] This determination does not, in my view, mean that the judicial review application will be less effective. As noted in BCJA , a robust and effective Bodner review may be available “without any relevant Cabinet submission being included in the record”: BCJA at para 83 . In this case the Association has been able to outline its case that Bodner requirements are not met, based on the detailed Government Response, supplemented by the Record which includes all submissions made to the JCC, and transcripts of JCC proceedings.

This case can be further developed based on this material and other admissible evidence. [ 33 ] I conclude that the threshold test has not been met, and the Cabinet Document need not be produced for judicial inspection. It is therefore unnecessary to consider arguments based on relevance, public interest immunity, and solicitor/client privilege.

Principles Governing the Admission of Affidavit Evidence [ 34 ] The Rules of Court allow the filing of affidavit evidence on a judicial review application, if permitted by the Court: Rules 3.15(5) and 3.22. [ 35 ] The Supreme Court in BCJA discussed the types of relevant evidence that may be provided by government or a party seeking Bodner review: 54 …The government may be permitted to “provide details [concerning the factual foundation of its response], in the form of affidavits, relating to economic and actuarial data and calculation” and “affidavits containing evidence of good faith and commitment to the process…” [citing Bodner at para 36] . 55 …[T]he party seeking Bodner review, which will usually be the judges whose remuneration is at stake, can also put in certain forms of additional evidence relevant to the issues the reviewing court must decide.

The party seeking review can, for example, seek to introduce evidence to counter relevant evidence put in by a government. It may put in evidence aimed at calling into question the reasonableness of the factual foundation relied on by the government, the government’s lack of meaningful engagement with or respect for the commission process or whether the government’s response was grounded in an improper or colourable purpose. … 60 To be relevant, the proposed evidence must contain something that tends to establish a fact concerning one of the steps of the test established in Bodner .

For instance, if the party seeking Bodner review contests the reasonableness of the factual foundation relied on by a government, the proposed evidence must either tend to support or undermine the reasonableness of that foundation. Likewise, if the party seeking Bodner review alleges disrespect for the commission process or that the government’s response is grounded in an improper or colourable process, the proposed evidence must either tend to establish the legitimacy of the government’s response or its illegitimacy…. BCJA .

Admissibility of the Affidavit of John Maher [ 36 ] The Maher Affidavit which the Association seeks to have admitted for purposes of the judicial review application was sworn on December 3, 2020 by the Honourable Judge Philip John Maher, a supernumerary judge of the Provincial Court of Alberta.

It contains 58 paragraphs on 13 pages of text, and 28 exhibits. [ 37 ] The topics addressed in the Maher Affidavit relate to the process for determining judicial compensation under the 2009, 2013 and 2017 JCCs, and the nature and impact of alleged delays in the 2013 and 2017 processes, including alleged delays in the implementation of the 2013 recommendations. [ 38 ] The Government agrees that much of the Maher Affidavit is relevant, but objects to the following portions as irrelevant [the Disputed Portions]: (

i) paragraphs 6-13 and all associated exhibits; (ii) the words “in completing implementation of the 2013 JCC’s recommendations and” in paragraph 17; (iii) the words “implementation of the 2013 JCC’s recommendations and” in paragraph 18; (iv) the second sentence of paragraph 30; (

v) the second sentence of paragraph 34; (vi) paragraphs 35-36 and all associated exhibits; (vii) paragraphs 38-40 and all associated exhibits; and (viii) paragraph 54 and the associated exhibit. [ 39 ] The Disputed Portions referred to in paragraphs (

i) through (vii) above relate to prior JCCs. The Government submits that the issues on the Bodner review relate to the rationality of the Government Response to the 2017 JCC, and that prior JCCs and the Government’s dealings with prior JCCs are not relevant. [ 40 ] A similar issue was addressed in Nova Scotia (Attorney General) v Judges of the Provincial and Family Court of Nova

Scotia , 2018 NSSC 13 ( NSJA SC ); aff’d 2018 NSCA 83 ( NSJA CA ); rev’d on other grounds NSJA . The applicants sought to introduce affidavit evidence including evidence of a “supposed delay” in implementation of the recommendations of a prior commission. The Nova Scotia Supreme Court found this evidence to be inadmissible: There will be many difficult issues before this Court on judicial review. I find it unnecessary to complicate the evidentiary base before the Court by augmenting it with evidence about what the government did or did not do in response to the 2014 Tribunal Recommendations.

N SJA SC at para 265 . [ 41 ] On appeal, the Court of Appeal agreed: I do not see an appealable error in the motions judge’s disallowance of paras. 17-20. Paragraphs 17-20 were offered, not as background narrative, but to show the Government’s bad faith in the 2017-20 process. Those paragraphs relate to a delay in the enactment of the 2014 Tribunal’s recommendations for 2014-17. The level of compensation in the 2014 Tribunal recommendations for judges was binding, by legislation, whatever happened in collective bargaining with the NSTU or NSGEU.

So the events recited in paragraphs 17-20 speak to timing, not to the level of judges’ remuneration. I agree with the motions judge that the timing of the 2014-17 adjustment has no probative spillover to the 2017-20 remunerative level featured in this litigation. NSJA CA at para 84 . [ 42 ] The Association submits that evidence of delays in the 2013 JCC process and in the implementation of its recommendations is relevant to the third part of the Bodner test, which requires the reviewing court to take a “global perspective,” and to weigh the “whole of the process and the response”: Bodner at para 38 .

In BCJA the Supreme Court contemplated the admission of evidence of “historical patterns, including the government’s responses to past commission recommendations,” as potentially supportive of a contention that the government did meet the requirements of the third part of the Bodner test. [ 43 ] The Association notes that historical evidence has been admitted and relied on in other cases in relation to the third part of the Bodner test: Provincial Judges’ Association of British Columbia v British Columbia (Attorney General) , 2014 BCSC 336 , paras 32- 34 , 44-62 (overturned on other grounds in 2015 BCCA 136 ); Newfoundland and Labrador Association of Provincial Court Judges v Newfoundland and Labrador , 2018 NLSC 140 , at paras 6-37 , 107-115, 118, 123-135, 150. [ 44 ] The evidence in the Maher affidavit regarding the 2013 JCC process deals with alleged delays in establishing the JCC.

Similar delays are alleged with respect to establishment of the 2017 JCC. Implementation of recommendations of the 2013 JCC was continuing at the same time that the 2017 JCC was being established. The two processes became intertwined to some extent, in that communications and correspondence addressed both issues on a number of occasions. [ 45 ] Both the JCC Report and the Government Response refer at length to the 2013 JCC recommendations.

The Government Response critiqued the way in which the JCC Report addressed the deterioration in economic conditions following the 2013 JCC recommendations. [ 46 ] In light of the direction of the Supreme Court of Canada to take a “global perspective” under the third part of the Bodner test, as well as the overlap in the 2013 and 2017 JCC processes, both chronologically and substantively, it is my view that the Disputed Portions referred to in paragraphs (

i) through (vii) are potentially relevant and should be admitted. Their significance or weight remains to be determined, but that will be an issue for the judicial review application. The evidence is not unduly lengthy, and is intermingled with evidence about the 2017 JCC process, the admissibility of which is not disputed.

It is unlikely to lengthen or add to the complexity of the judicial review application in any significant way. [ 47 ] In my view, NSJA CA is distinguishable, as the Court of Appeal noted that the recommendations of the prior commission were binding, and held that in those circumstances there was no “probative spillover” between issues of timing relating to the prior commission and issues regarding the level of remuneration under the recommendations that were the subject of review.

In contrast, for the reasons above, it is my view that there may be probative spillover between the 2013 and 2017 JCC processes in this case. [ 48 ] The relevance of the 2009 JCC is more tenuous. However, the Disputed Portion relating to the 2009 JCC is very brief, consisting of one paragraph, with no exhibits. The same information is available in the Record. This Disputed Portion is thus unnecessary, but also harmless.

I see no need to have the Maher Affidavit redrafted on account of this single paragraph. [ 49 ] The final Disputed Portion is paragraph 54 of the Maher Affidavit and associated Exhibit 28, which is the 2019 Budget of the Government of Alberta, released on October 24, 2019. The Budget was released after the Government Response, which issued on September 13, 2019.

The Government submits that it is therefore irrelevant. [ 50 ] In the portion of the Government Response headed “New economic and fiscal evidence,” the Government indicates that “new facts and circumstances have arisen since the release of the 2017 Commission Report which justify a departure from the 2017 Commission’s recommendations”: at para 121.

The reasons include a Table comparing GDP growth projections, and observe that “the projections have become progressively less optimistic over time, with the Conference Board of Canada now forecasting a mild recession for 2019, a new circumstance that was not contemplated at the time of the 2017 Commission Report”: at paras 127, 128. [ 51 ] The 2019 Budget was released less than six weeks after the Government Response. It, too, has a Table including forecasts stated to have been finalized on or before August 27, 2019 (i.e., predating the Government Response).

There are some – small – differences in the 2019 forecasts, with the average private forecast in the Budget slightly higher than in the Government Response. Further, the Budget provides more optimistic forecasts for 2020 and beyond. This information was not included in the Government Response. [ 52 ]

Part 2 of the Bodner test puts in issue the reasonableness of the factual foundation of a government response. As the 2019

Budget was released soon following the Government Response, and based on information available at the time of the Government Response, it is relevant to this issue. While the Government argues that the differences in the information are insignificant, that is a matter of weight that is properly addressed on the judicial review application. [ 53 ] I conclude that the Disputed Portions of the Maher Affidavit are relevant and admissible.

Conclusion [ 54 ] The application for an order directing the Government to provide a further and better Record that includes the Cabinet Document is dismissed. [ 55 ] The application to admit the Maher Affidavit is allowed. [ 56 ] The parties may speak to me regarding costs if they are unable to agree. Alternatively, costs on the preliminary applications may be addressed following the judicial review application. Heard on the 8 th day of January, 2021. Dated at the City of Edmonton, Alberta this 16 th day of March, 2021. J.M. Ross J.C.Q.B.A.

Appearances: Susan Dawes and Kristen Worbanski of Myers LLP for the Plaintiff/Applicant Doreen Mueller, Lesley Akst and Josh de Groot of Justice and Solicitor General, Civil Litigation for the Defendants/Respondents