Provincial Court Judges’ Association of British Columbia Petitioner v. Attorney General of British Columbia, 2013 BCSC 1302

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2013 BCSC 1302 Date: 20130722 Docket: 13-1714 Registry: Victoria Between: Provincial Court Judges’ Association of British Columbia Petitioner And Attorney General of British Columbia Respondent Before: The Honourable Madam Justice Loo Reasons for Judgment Counsel for the Petitioner: J.J.M. Arvay Q.C. Counsel for the Respondent: J.G. Penner Place and Date of Trial/Hearing: Victoria, B.C. July 10, 2013 Place and Date of Judgment: Victoria, B.C.

July 22, 2013 I. introduction [ 1 ] The respondent, Attorney General of British Columbia (“Attorney General”), seeks an order striking the petition of the Provincial Court Judges’ Association of British Columbia (“PCJA”) on the ground that the petition, by failing to set out the ground on which relief is sought, does not comply with s. 14 of the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 [ JRPA ].

That provision reads as follows: 14 An application for judicial review is sufficient if it sets out the ground on which relief is sought and the nature of the relief sought, without specifying by which proceeding referred to in

section 2 the claim would have been made before February 1, 1977. [ 2 ] This petition has been referred to as the second petition for judicial review. In the first petition for judicial review (“first judicial review”), the PCJA successfully challenged the government’s response, wherein the government rejected, in whole or in part, six of the fifteen recommendations made by the 2010 Judges Compensation Commission (“Commission”) in its Final Report to the Attorney General (“2010 Commission Report”). [ 3 ] On July 11, 2012, Mr.

Justice Macaulay directed the return of the matter to the government for reconsideration. He later assessed special costs against the government. [ 4 ] On March 12, 2013, the government in its 2013 response again rejected, in whole or in part, six of the fifteen recommendations. This petition, the second petition, was filed on May 10, 2013. [ 5 ] On May 16, 2013, Jonathan Penner, on behalf of the Attorney General, wrote to Joseph Arvay Q.C., counsel for the PCJA, stating that the petition failed to comply with s. 14 of the JRPA . While

Part 3 set out the “legal basis” for the relief sought, in his view, there was no ground set out at all. He went on to state that without a ground being set out, the Attorney General was not in a position to meaningfully respond to the petition. [ 6 ] Mr. Arvay wrote back to Mr. Penner on June 3, 2013, as follows: Attention: Jonathan Penner Dear Sir: Re: Provincial Court Judges’ Assn. of BC v. AGBC

SCBC Victoria Registry No. 131714 We do not agree that we have failed to comply with the requirements of the Judicial Review Procedure Act, R.S.B.C. 1996 c. 241, to state the grounds for judicial review. We reiterate our view that what you are seeking is our “argument” not our grounds. At best, you are seeking further particulars of our grounds. In an effort to avoid an unnecessary and costly application, we provide you herewith those particulars.

In particular, the Government’s 2013 Response to the [Commission]: a. consisted of irrational and unreasonable expressions of new arguments as to why the [Commission] recommendations were unfair or unreasonable which could have been but were not relied on in its 2011 response; b. attempts to rely on “fresh evidence” that with the exercise of due diligence would have been available either at the time of the [Commission], the 2011 response or the first judicial review; c. attempts to rely on “new evidence”, three years after the [Commission] process, which it has cherry-picked, and has not given the Provincial Court Judges an opportunity to challenge that evidence nor given the [Commission] an opportunity to consider that evidence all of which renders the [Commission] process meaningless; d. relies on substantially similar reasoning that was rejected by Macaulay J. in the first judicial review and cannot, for the same reasons, be successfully relied on now; and e. such other particulars as counsel may advise.

We expect to receive your Response and any supporting material within the next 10 days. [ 7 ] This application was filed on behalf of the Attorney General on June 3, 2013. II. THE FACTS A. The Petition [ 8 ] It is first necessary to set out what is contained in Parts 1 to 4 of the petition. The petitioner now seeks to challenge only three of the recommendations that were rejected, so I will only deal with that part of the petition relating to those recommendations and the government’s response. 1.

Part 1 - Orders Sought [ 9 ] The orders sought are similar to the orders sought in the first petition and include: 1. An order in the nature of certiorari quashing the resolution of the Legislative Assembly made March 12, 2013, which rejected in whole or in part six of the fifteen recommendations contained in the [2010 Commission Report]. 2.

A declaration that the governmental response to the recommendations of the 2010 Judges Compensation Commission did not conform to the standard set out in the Judicial Compensation Act , S.B.C. 2003, c. 59, and embodied in the constitutional principle of judicial independence for rejecting the recommendations of a judicial compensation commission. … 5. In the alternative, a direction to the Attorney General of British Columbia as to the content of a new motion to be placed before the Legislative Assembly. 2.

Part 2 - Factual Basis [ 10 ] The facts are set out in great detail in

Part 2 and may be summarized as follows: 1. In 2010, the five-person Commission was appointed, pursuant to s. 2 of the Judicial Compensation Act , S.B.C. 2003, c. 59, as amended [ Judicial Compensation Act ]. 2. The Commission’s recommendations were for the three fiscal years beginning April 1, 2011, 2012, and 2013. 3. On September 2, 2010, the Commission issued the 2010 Commission Report to the Attorney General and the Chief Judge. 4. The 2010 Commission Report made 15 recommendations, including that there be: (

a) no salary increases for judges in 2011/12 or 2012/2013, but that effective April 1, 2013, puisne judges receive a salary increase equal to the accumulated increase in the B.C. Consumer Price Index over the preceding three years, compounded annually; (

b) an increase in the pension accrual rate to 3.5 percent effective April 1, 2013, so as to allow judges to accrue the maximum pension benefit of 70 percent after 20 years of service; and (

c) an increase in the pension contribution period from age 71 to age 75 effective April 1, 2011.

5. In May 2011, the Cabinet issued a Government Response to the report (“2011 Response”). It rejected four recommendations butmade substitutions, rejected two recommendations but provided a similar response with deferred implementation, accepted onerecommendation in part, and accepted the remaining eight recommendations. 6. On May 30, 2011, the Legislative Assembly approved a notice of motion put forward by the Attorney General. By doing so, iteffectively adopted the government’s 2011 Response and thereby: (

a) rejected the recommended salary increase in 2013/14, instead setting the salary increase for the fiscal year 2013/14 at zero; (

b) rejected the recommended increase in the pension accrual rate from 3 percent to 3.5 percent, setting the accrual rate at 3 percent;and (

c) rejected the recommended increase in the pension contribution period from age 71 to 75, setting the contribution period to end inthe year in which the judge attained 71 years of age, as was currently the case. 7. The hearing of the application for the first judicial review took place on June 5 to 7, 2012. 8. In reasons for judgment dated July 11, 2012, indexed at 2012 BCSC 1022, Mr.

Justice Macaulay, in considering theconstitutional principles and manner in which the government must respond to the 2010 Commission Report, applied the decisions of theSupreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), (SCC), [1997] 3S.C.R. 3 and 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 (AttorneyGeneral), 2005 SCC 44.

He found that the government’s 2011 Response lacked legitimacy and rationality. He further found that thegovernment failed to participate meaningfully in the constitutional process, rendering the process largely pointless. He held that “[t]heCabinet briefing document, signed by the Attorney General, evidenced, at best, a lack of good faith commitment to the constitutionalprocess. At worst, it is a deliberate information shell game”: para. 81.

He declared that the government’s 2011 Response did not conformto the applicable constitutional principles, and directed the return of the matter to government and the Legislative Assembly inaccordance with his reasons for judgment. 9. On September 27, 2012, in reasons indexed at 2012 BCSC 1420, Mr. Justice Macaulay ordered the Attorney General to payspecial costs because the government’s conduct, including the Cabinet submission, was deserving of censure and judicial rebuke. 10. The 2010 Commission Report was again tabled in the Legislative Assembly.

On March 12, 2013, the Legislative Assemblyunanimously adopted the motion of the Attorney General (“2013 Response”). This time it rejected, in whole or in part, six of the fifteenrecommendations in the 2010 Commission Report as unfair and unreasonable. In doing so, the Legislative Assembly: (

a) rejected the recommended salary increase in 2013/14, and set the salary increase for the fiscal year 2013/14 at 1.5 percent; (

b) rejected the recommended increase in the pension accrual rate from 3 percent to 3.5 percent, and set the accrual rate at 3 percent;and (

c) rejected the recommended increase in the pension contribution period from age 71 to age 75, and set the contribution period atage 71. [11] Accordingly, the 2013 Response, like the 2011 Response, rejected the recommended increase in the pension accrual rate andthe pension contribution period, but increased the salary increase for the fiscal year 2013/14 from its earlier position of zero percent to1.5 percent. [12] As Mr. Arvay bluntly put it, the PCJA was flabbergasted by the government’s response.

It was almost completely the sameresponse with only some new wrapping paper, a couple of different tweaks, and some new reasons or reasons which ought to have beenknown in 2011 for rejecting six of the recommendations. It was, for all intents and purposes, the same as the 2011 Response that thePCJA had successfully challenged on the first judicial review. 3.

Part 3 - Legal Basis [13]

Part 3 sets out the legal basis for the orders sought. The PCJA contends that

Part 3 sets out grounds sufficient to satisfy s. 14 ofthe JRPA. [14]

Part 3 reads: 1. The Petitioner relies on: a. Sections 5 and 6 of the [Judicial Compensation] Act; b.

Section 52 of the Constitution Act, 1867; and c. the principle of judicial independence, as articulated in the common law and entrenched in s. 11(

d) of the Canadian Charter ofRights and Freedoms and the

preamble and ss. 96, 100 and 129 of the Constitution Act, 1867. 2. The constitutional principle of judicial independence dictates that the Government and the Legislative Assembly must not reject orvary the recommendations of the [Commission] unless: a. the Government articulates a legitimate reason for departing from the commission’s recommendations;

b. the Government’s reasons rely upon a reasonable factual foundation; and c. viewed globally, the commission process has been respected and the purposes of the commission – preserving judicial independenceand depoliticizing the setting of judicial remuneration – have been achieved. 3. Section 6(2) of the [Judicial Compensation] Act provides that the Legislative Assembly may reject a recommendation of the[Commission] only if it is unfair and unreasonable. 4. In the circumstances set out herein, the Government’s 2013 Response failed to comply with each of the three above mentionedconstitutionally mandated criteria as well as with s. 6(2) of the [Judicial Compensation] Act. 4.

Part 4 - Materials to be relied upon [15]

Part 4 of the petition sets out the materials to be relied on, including the record in the first judicial review. III. Argument [16] The PCJA contends that

Part 3 of the petition sets out grounds sufficient to satisfy s. 14 of the JRPA. The Attorney Generalargues otherwise and relies on the following authorities: Save Our Parkland Assn. v. Vancouver (Registrar of Land Titles), [1964] B.C.J.No. 47 (S.C.); Regina v. Alder, Ex parte Ready (1968), (BC SC), 67 D.L.R. (2d) 513, [1968] B.C.J. No. 148 (S.C.);Valcourt v. British Columbia (Director of Pollution Control Branch), [1978] B.C.J. No. 602 (S.C.); Re Saanich Inlet PreservationSociety et al. and Cowichan Valley Regional District (1981), (BC SC), 130 D.L.R. (3d) 716, [1981] B.C.J.

No. 1870(S.C.), aff’d (1983) (BC CA), 44 B.C.L.R. 121, [1983] B.C.J. No. 873 (C.A.); Alpenridge Wood Products Ltd. v.British Columbia, [1992] B.C.J. No. 778 (C.A.); Husby Forest Products Ltd. v. Minister of Forests, 2003 BCSC 1978; and Halvorson v.British Columbia (Medical Services Commission), 2010 BCCA 267. [17] The PCJA argues that all of the authorities are distinguishable because no grounds were provided. [18] In my view, the decision in Save Our Parkland Assn. does not assist the Attorney General. In that case, Mr.

Justice Aikins (ashe then was) considered a notice of motion for certiorari which sought an order or declaration that the approval of a subdivision plan bythe City’s approving officer was a nullity. Counsel for the approving officer and another party objected to the notice of motion on theground that it failed to comply with Marginal Rule 870 because it did not set out any grounds. [19] Although Mr.

Justice Aikins, at para. 10, found that the notice of motion failed to “fully set out whatever it is here they relyupon as a ground to support the motion” and that the applicants “should have stated what they allege the approving officer did or failed todo”, the decision is distinguishable. It was based on M.R. 870 of the former Supreme Court Rules 1961, which provided that “[e]veryapplication for a writ of certiorari shall set forth fully the grounds on which the application is made”.

M.R. 870 is quite different from s.14 of the JRPA, which provides that “[a]n application for judicial review is sufficient if it sets out the ground on which relief is soughtand the nature of the relief sought”. [20] For the same reasons, the decision in Regina v. Adler, Ex parte Ready does not assist the Attorney General. That decision alsodealt with a writ of certiorari and a notice of motion that failed to comply with M.R. 870. [21] Valcourt considered s. 14 of the JRPA.

In that case, however, the petitioners suggested that the grounds were contained in twoparagraphs of the petition, which asserted that the director of pollution control ordered the sewer construction without accurate orsufficient knowledge of the issues involved and relied only on the executive director of the regional district, and that the petitionersquestioned the autocratic, arbitrary, undemocratic, and apparently illegal methods adopted to authorize the project and the validity of theauthorization. Mr.

Justice Callaghan found that the two paragraphs were not grounds at all, but “bald statements or assertions which aremore frequently heard in submissions or argument”. [22] Saanich Inlet Preservation Society also dealt with s. 14 of the JRPA, but that decision does not assist the Attorney Generalbecause the petition failed to set out any ground on which the relief was sought.

Similarly, the petitions in Alpenridge Wood ProductsLtd. and Husby Forest Products Ltd. failed to set out any grounds on which the relief was sought. [23] In Halvorson, the Court of Appeal merely referred to the decision in Alpenridge Wood Products Ltd., and went no further. Itdoes, however, point out that particulars are different than the grounds required by s. 14. [24] The Attorney General also argues, as it did in the first petition, that the petition should set out sufficient grounds. [25] The first petition, under

Part 3, contained what are described in the petition as particulars. The particulars comprise pages 14 to19 of the 19-page petition. They are, as the PCJA contends, “elaborate particulars”, beyond what is normally found in a pleading andbeyond what is required by s. 14. Mr. Arvay says they were provided in the unrealized hope that the government would “see the lightand do the right thing.” IV.

Conclusion [26] While the Attorney General might prefer elaborate particulars in the petition, similar to the elaborate particulars set out in thefirst petition, they are not necessary in order to meet the requirement in s. 14 of the JRPA. Particulars are different than the grounds forthe relief sought, and the petition here provides sufficient grounds. Together with the particulars set out in Mr. Arvay’s letter of June 3,2013, the Attorney General is able to file a meaningful response.

[ 27 ] I agree with the PCJA that what the Attorney General really seeks is the PCJA’s argument on how the government’s 2013 Response – the second time around – failed to meet the appropriate constitutional principles. I am satisfied that

Part 3 of the petition adequately sets out the legal basis for the relief sought and satisfies s. 14. [ 28 ] The application is dismissed and the PCJA is entitled to its costs. “Loo J.” _______________________________ The Honourable Madam Justice Loo