The Judges of the Provincial Court of Newfoundland v. Labrador, 2022 NLSC 47

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador (Provincial Court) v. Newfoundland and Labrador , 2022 NLSC 47 Date : March 24, 2022 Docket : 202001G3724 Between: The Judges of the Provincial Court of Newfoundland and Labrador First Applicant And: Jacqueline Brazil Second Applicant And: Gregory Brown Third Applicant And: Lynn Cole Fourth Applicant And: Robin Fowler Fifth Applicant And: Colin Flynn Sixth Applicant And: Wayne Gorman Seventh Applicant And: Phyllis Harris Eighth Applicant

And: Kymil Howe Ninth Applicant And: Jacqueline Jenkins Tenth Applicant And: John Joy Eleventh Applicant And: Mark Linehan Twelfth Applicant And: Michael Madden Thirteenth Applicant And: Lori Marshall Fourteenth Applicant And: Paul Noble Fifteenth Applicant And: David Orr Sixteenth Applicant And: Kari Ann Pike Seventeenth Applicant And: Harold Porter Eighteenth Applicant And: Rolf Pritchard Nineteenth Applicant And: Lois Skanes Twentieth Applicant

And: Bruce Short Twenty-First Applicant And: Wynne Anne Trahey Twenty-Second Applicant And: James Walsh Twenty-Third Applicant And: Her Majesty the Queen in right of the Province of Newfoundland and Labrador First Respondent And: Andrew Parsons , THE HONOURABLE MINISTER OF JUSTICE AND PUBLIC SAFETY AND ATTORNEY GENERAL Second Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 21 and 22, 2022

Summary: The judges of the Provincial Court applied for a declaration that the Government had acted unconstitutionally by not implementing the recommendations of a remuneration tribunal, and an order in the nature of mandamus ordering immediate implementation. The Court found that the Government had acted in an unconstitutional manner by failing to either approve the tribunal recommendations, or to vary or reject the recommendations on legitimate constitutional grounds.

The Court dismissed the application for declaratory relief but ordered the respondents to bring a Resolution to the House of Assembly for approval of the tribunal recommendations before April 14, 2022. The judges also applied for an order that the Government had failed to comply with a prior order of the Court requiring the parties to engage in discussions to improve the process for setting judicial remuneration. The Court dismissed that application because there was evidence that those discussions had since been initiated. Appearances: Susan Dawes and

Kristen Worbanski Appearing on behalf of the Applicants Paul D. Dicks, Q.C. and Megan S. Reynolds Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: R. v. Valente (No. 2), (SCC), [1985] 2 S.C.R. 673; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56; R. v. Campbell, (SCC), [1997] 3 S.C.R. 3; Mackin v. New Brunswick (Minister of Justice),2002 SCC 13; Provincial Court Judges' Association (New Brunswick) v.

New Brunswick (Minister of Justice), 2005 SCC 44; Referencere Remuneration of Judges of the Provincial Court of Prince Edward Island, (PE SCAD), [1994] 2 P.E.I.R. 49, 389A.P.R. 335 (S.C.A.D.); Newfoundland Association of Provincial Court Judges v. Newfoundland, 2000 NFCA 46; Newfoundland andLabrador Association of Provincial Court Judges v. Newfoundland and Labrador, 2018 NLSC 224; Provincial Court Judges’Association (New Brunswick) v.

New Brunswick (Minister. of Justice), 2009 NBCA 56; Provincial Judges' Association of Manitoba v.Manitoba, 2013 MBCA 74; Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador, 2018NLSC 140; Provincial Court Judges' Association. of British Columbia v. British Columbia (Attorney General), 2015 BCCA 136;Conférence des juges du Québec c. Québec (Procureur général), 2007 QCCS 2672; Kourtessis v.

Minister of National Revenue 1993), (SCC), 102 D.L.R. (4th) 456, 14 C.R.R. (2d) 193 (S.C.C.); Newfoundland Association. of Provincial Court Judges v.Newfoundland, (NL SC), 163 Nfld. & P.E.I.R. 319, 503 A.P.R. 319 (Nfld. S.C.(T.D.)) STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Provincial Court Act, 1991, S.N.L. 1991, c. 15 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This case concerns the manner in which remuneration of provincial court judges is set and adjusted. [2] There are three branches of government in a parliamentary democracy: the legislative, the executive, and the judicial. Thelegislative branch enacts laws, the executive implements those laws and the judiciary resolves legal conflicts including disputes over theinterpretation and application of those laws.

Each branch is subject to the Constitution, which is derived from various writteninstruments including the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11, and unwritten norms which have constitutional force. [3] In public law matters, the judiciary stands between citizens and the other branches of government to enforce fair legaltreatment and respect for the Constitution. Indeed, government is the most frequent litigant appearing before all levels of Canadiancourts. It is thus crucial to the rule of law that the judiciary is allowed to function, and be seen to function, independently of the otherbranches.

Judicial independence is of such importance to the functioning of democracy that it is considered constitutionally protectedfrom violation by the other branches. [4] Consequently, in Canada judges are public servants, but they are not civil servants or employees of the government. However, they still must be paid from the public purse, which is controlled by the other branches. This creates a conundrum.

The otherbranches are elected and therefore inherently political in both the broader sense of the word, entailing choices regarding politicaleconomy and public affairs; and the narrower sense, connoting partisanship and electoral competition. The members of the otherbranches have broad political, partisan, and sometimes even personal, interests in the outcome of litigation in which government isinvolved. Their control over judicial remuneration has obvious implications for judicial independence in the face of such interests. [5] The public has an interest in the maintenance of judicial independence.

However, the public is also interested in judicialremuneration. Judges are not only paid from public funds, but they are among the highest paid of those who receive remuneration fromthat sphere. In times of increasing income inequality and ever-growing demand on the treasury, the public understandably may not seethe importance of judicial remuneration as a priority even if it is a constitutional imperative. This has implications for the partisan andbroader political interests of those who serve in the other branches of government.

But, in order to maintain independence, judges areconstitutionally prohibited from negotiating their remuneration, and from directly appealing to the public. [6] The fabric that I have just laid out was not cut by me from whole cloth, but is a

summary of basic tenets developed in otherCanadian cases related to judicial remuneration. The recent history of judicial remuneration in Canada is unfortunately a history thatincludes frequent litigation between the judicial branch (mainly provincial court judges in various provinces, but also other judicialofficers such as Justices of the Peace and Prothonotaries) and the others.

A positive outcome of this litigation has been the developmentof a process for setting judicial remuneration, through independent commissions, that is designed to account for the constitutionallyprotected nature of judicial independence, for the political concerns of the other branches of government and for economic realities. Theoutline of that process was originally developed in decisions of the Supreme Court of Canada; but the detailed framework was laid out bythe legislatures, although with variations in the models adopted.

[7] The hope expressed by the Supreme Court of Canada in recommending this process was that litigation between the judiciaryand other branches would thereafter be avoided. Unfortunately, that has not been the experience. As I will discuss later in these reasons,this has been the experience related to provincial court judges’ remuneration in this province. The Constitutional Framework for Setting Judicial Remuneration [8] The framework for a constitutionally valid process for setting judicial remuneration was developed through several casesdecided by the Supreme Court of Canada: R. v.

Valente (No. 2), (SCC), [1985] 2 S.C.R. 673; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (PE SCAD), [1994] 2 P.E.I.R. 49, 389 A.P.R. 335 (S.C.A.D.), (the “PEI Reference”); R. v. Campbell, (SCC), [1997] 3 S.C.R. 3; Mackin v. New Brunswick (Minister of Justice), 2002 SCC 13; and Provincial Court Judges' Association (NewBrunswick) v. New Brunswick (Minister of Justice), 2005 SCC 44 (“Bodner”). The statement of basic tenets at the beginning of thesereasons is taken from those cases.

The following more detailed description of the essential requirements for a constitutionally validprocess for setting judicial remuneration is taken from the PEI Reference, which built on the cases that preceded that decision, and wasconfirmed by the cases that came after it: Judicial Independence • Judicial independence is an unwritten constitutional norm and a foundational principle of Canadian democracy; • Judicial independence must not only be guaranteed but also evident to a reasonable and informed person; • The three core characteristics of an independent judiciary are (

i) security of tenure, (ii) financial security, and (iii) administrativeindependence; Financial Security is Necessary to Assure Judicial Independence • The imperative of financial security requires that the courts both be free and appear to be free from political interference througheconomic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from thepublic purse; • The purpose of the constitutional guarantee of financial security is to ensure judicial independence, although judges benefit; • The danger of political interference through economic manipulation can arise not only from reductions in the salaries of superiorcourt judges, but also from increases and freezes in judicial remuneration • Financial security for the courts as an institution has three components: - First, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure, whichaffects the salaries of all or some persons who are remunerated from public funds, or as part of a measure that is directed at provincialcourt judges as a class. - Second, under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, butalso as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature. - Third, any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation,cannot take those salaries below a basic minimum level of remuneration, which is required for the office of a judge.

Remuneration Process Must be Conducted through a Commission Independent of Government • Changes to or freezes in judicial remuneration require prior recourse to a special commission process, which is independent,effective, and objective, for determining judicial remuneration. • Governments are constitutionally bound to go through that commission process. • The recommendations of the commission need not be binding on the executive or the legislature. • Although the recommendations are not constitutionally required to be binding, the legislature can decide to make them binding. • These commissions must be independent of the executive or the legislature. • These commissions should objectively consider economic and other relevant factors, and submissions from the executive and thejudiciary. • These commissions must also be effective, with effectiveness guaranteed in a number of ways - First, there is a constitutional obligation for governments not to change judicial remuneration until they have received the report of thesalary commission. - Second, in order to guard against the possibility that government inaction might lead to a reduction in judges' real salaries because ofinflation, and that inaction could therefore be used as a means of economic manipulation, the commission must convene if a fixed periodof time has elapsed since its last report, in order to consider the adequacy of judges' salaries in light of the cost of living and otherrelevant factors, and issue a recommendation in its report.

Although the exact length of the period is for provincial governments to

determine, the Supreme Court suggested a period of three to five years. - Third, the reports of the commission must have a meaningful effect on the determination of judicial salaries • Effectiveness can be guaranteed in different ways: - A report of the commission could be made binding on government - A negative resolution procedure, whereby the report is laid before the legislature and its recommendations are implemented unless the legislature votes to reject or amend them. - An affirmative or positive resolution procedure, whereby a report is laid before, but need not be adopted by, the legislature. • Both the binding decision and negative resolution models exceed the constitutional standard. • The positive resolution model on its own does not meet that standard, because it requires no response to the commission's report at all.

In order for a positive resolution model to be effective in practice, and therefore constitutionally valid: - The executive or the legislature should not be free to ignore it, but must formally respond to the contents of the commission's report within a specified amount of time. - If the legislature is involved in the process, the report of the commission must be laid before the legislature, when it is in session, with due diligence.

If the legislature is not in session, the government may wait until a new sitting commences. - The legislature should deal with the report directly, with due diligence and reasonable dispatch. • If the executive or the legislature, as applicable, chooses not to accept one or more of the recommendations in the commission report, it must be prepared to justify this decision.

The reasons for this decision should be found either in the report of the executive responding to the contents of the commission's report, or in the recitals to the resolution of the legislature on the matter. - The standard of justification required is one of simple rationality .

The government must articulate a legitimate reason for why it has chosen to depart from the recommendation of the commission, and if applicable, why it has chosen to treat judges differently from other persons paid from the public purse. - Although the test of justification — one of simple rationality — must be met by all measures that affect judicial remuneration and that depart from the recommendation of the salary commission, some will satisfy that test more easily than others, because they pose less of a danger of being used as a means of economic manipulation, and hence of political interference.

The Statutory Process in this Province [ 9 ] The commission process in this province was created before the decision in PEI Reference , in the Provincial Court Act, 1991 , S.N.L. 1991, c. 15 , which originally provided for a commission and a form of negative resolution model for implementation of its recommendations:

(5) The tribunal shall submit a report containing recommendations on salaries and benefits to the minister within 6 months following the date of the appointment of the tribunal.

(6) The minister shall, within 15 days of receiving a report under subsection (5) lay that report before the House of Assembly if the House of Assembly is in session or if not, within 15 days of the commencement of the next session.

(7) The House of Assembly shall consider and approve or vary a report submitted under subsection (6) within 30 days of that submission and upon the expiration of those 30 days that report or varied report shall be implemented.

(8) A report or varied report implemented under subsection (7) shall be in effect for a 4 year period commencing on the expiry of the 30 day period referred to in subsection (7). [ 10 ] In 1997, the Commission process was altered by amendment to the Provincial Court Act, 1991 .

The amending Act , S,N.L. 1997, c. 19 , deleted subsections 28(5) to (8) and substituted a positive resolution process in s. 28.2(3) : 28.1 Tribunal to report on minister's request 28.1(1) The minister may, at any time, refer a matter respecting salaries or benefits of judges to the tribunal for its review and recommendations. 28.1(2) The tribunal shall submit a report on a matter referred to it under subsection (1) to the minister within 6 months following the date the matter is referred to the tribunal or within the shorter time that the minister may direct. 28.2(2) The minister shall, within 15 days of receiving a report under subsection (1) present the report to the House of Assembly if the House of Assembly is in session and if the House of Assembly is not, within 15 days of the commencement of the next session. 28.2(3) The House of Assembly shall consider a report submitted under subsection (2) within 30 days of its being tabled, and shall approve, vary or reject the report. 28.2(4) Where a session is prorogued before a report is dealt with by the House of Assembly under subsection (3), the minister shall re- submit the report within 15 days of the beginning of the next session and the House of Assembly shall consider the report within 30 days

of its re-submission and shall approve, vary or reject it. [ 11 ] In Newfoundland Association of Provincial Court Judges v. Newfoundland , 2000 NFCA 46 , the Court of Appeal described the effect of these amendments: 63 These amendments were ostensibly enacted to bring the existing regime into conformity with the decision in No. 1 so as to ensure protection of judicial independence. There is irony here.

With the exception of the formal recognition of the right of the judges to nominate at least one member of the tribunal and a provision for continued existence of the tribunal for a four year terms during which other benefits issues could be referred for consideration, the other provisions in fact weakened some of the protections which the judges formerly had. The substitution of a positive, for a negative, resolution procedure is the most obvious example.

Others are: the provision allowing prorogation of the House before dealing with a tribunal report and the elimination of the requirement that there must be a recommendation on the salaries and the substitution of the requirement that the tribunal make recommendations on salaries. [emphasis original] [ 12 ] These provisions of the Act have not been amended since 1997. The History of Provincial Court Judges’ Remuneration since 1991 [ 13 ] The history of the remuneration process since 1991 has been fraught with difficulty.

This history to 2000 was recounted thoroughly by the Court of Appeal in Newfoundland Association of Provincial Court Judges v. Newfoundland , 2000, at. paras. 6-66; the history from 2000 to 2018 was set out in the findings of Faour J in Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador , 2018 NLSC 224 , at paras. 26-65 . I will not repeat that detailed history, but I will allow the conclusions of Green JA writing for the majority of the Court of Appeal and of Faour J to summarize it: Green JA 309 The judges in this case deserved better treatment than they received.

In saying that, I do not mean to suggest that their claims that they deserved an increase in remuneration and benefits were necessarily justified. That is not the issue before this Court. What I am suggesting, however, is that they deserved to have their perceived grievances respecting monetary issues dealt with in a proper manner that respected both constitutional principle and the policies behind their own statute.

The approach taken by the government, no doubt influenced by the very burdensome economic problems of the day, was to defer, delay and deflect, rather than to focus, face and facilitate Faour J 150 Notwithstanding the progress made on salary and benefits, I believe the history discloses a systemic delay that has diminished the effectiveness and credibility of the process. The legislation is not to blame.

While it does not require that a Tribunal be appointed as of a certain date, it does require that the report be delivered not less than four years from the last report. (Section 28.2(1)) The judges argued that the very practical effect is that one delay has a compounding effect on subsequent processes. The failure to apply economic and fiscal data to the period of the tribunal, in my view, shows a lack of respect for the process.

In that way, the Government's response falls short of meeting its constitutional obligations. 154 Unfortunately, one of the most egregious aspects of this case is the extent to which the response to the recommendations was played out in a political forum, reflecting the failure of the Government to respect the commission process, and to achieve the "... purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration ...." ( Bodner , at paragraph 31 ).

That lack of respect arose in some of the points raised above, including the failure to fully engage the tribunal process, making one submission to the tribunal and responding to its recommendations with a different rationale, and the exchanges in the House of Assembly. The 2017 to 2021 Commission [ 14 ] The decision of Faour J considered issues relating to the 2013-2016 Tribunal, known, for its chair, as the first Wicks tribunal. Under the provisions of the Act , the Tribunal should have been appointed in early 2017 to recommend remuneration for the period 2017- 2021.

The judges through their counsel, starting in March 2017 frequently requested Government to reappoint the members of the Wicks’ Tribunal. Government delayed the appointment. The judges applied to the Court for an Order requiring the reappointment of the Tribunal and the referral to it of the question of remuneration for the period of 2017-2021. The judges issued that application in January 2018, but the Government waited until June 28, 2018, the day scheduled for the hearing of that application, to make that referral.

Therefore, consistent with the pattern of the Tribunal process since 1991, the recommendations for the period 2017 to 2021 were bound to be at least partially retroactive. [ 15 ] As it turned out, the recommendations of the second Wicks Tribunal were rendered entirely retroactive due to further Government inaction.

It is now months beyond the end of the remuneration period that was considered by the second Wicks Tribunal. [ 16 ] The second Wicks Tribunal received extensive written submissions from the judges and from Government and then held a public hearing during which it heard expert economic evidence from each side. The Tribunal then delivered its report to the Government on June 6, 2019, along with a recommendation that Government consider its report in a timely manner. [ 17 ] Consistent with the Act , the Minister of Justice and Public Safety presented the Tribunal report to the House of Assembly on June 25, 2019.

According to the Act , s. 28.2(3), the House was required to consider the report by July 26, 2019. It did not do so. The report was effectively tabled when the sitting was prorogued. [ 18 ] Although the House did resume sitting at various times, it was not until a year later, on June 16, 2020, that the Minister brought forward a Resolution to the House recommending the adoption of the recommendations in the Tribunal report and the implementation of those recommendations retroactively to April 2017.

[ 19 ] The Minister and the Government House Leader spoke in favour of the Resolution. Both noted that they recognized that support for the recommendations might be politically unpalatable in the then-current fiscal situation, which had been complicated by the economic effects of the COVID-19 pandemic and related public health measures.

However, both noted the constitutional obligations of the Legislature in respect of the issue of judicial remuneration, although the Minister did seem to suggest at one point that those obligations ought to only be respected because otherwise the Government would lose an eventual court case.

Members of the Opposition spoke against the adoption of the recommendations for various reasons, including: the economic impact of the pandemic, issues with the process in general, an insistence that judges should negotiate like civil servants, the fact that judges were highly paid and an assumption that they would give up their rights to any increase in light of the pandemic. [ 20 ] In light of the principles I recounted earlier, none of the reasons offered by the Opposition members in opposing the Resolution were constitutionally valid reasons justifying rejection of the Tribunal recommendations. [ 21 ] The Supreme Court of Canada decided in PEI Reference that in a statutory process, as in this province, in which the legislature is assigned responsibility to ultimately deal with the issue, reasons for rejection or variation of the Tribunal recommendations should be stated in the recitals of the Resolution (or amended Resolution) that determines the matter, and not distilled from Hansard. [ 22 ] In Bodner , the Supreme Court of Canada set out a three-part test for the court to use in reviewing reasons for rejecting or varying recommendations: 22 If the government departs from the commission's recommendations, the Reference requires that it respond to the recommendations.

Uncertainties about the nature and scope of the governments' responses are the cause of this litigation. Absent statutory provisions to the contrary, the power to determine judicial compensation belongs to governments. That power, however, is not absolute. 23 The commission's recommendations must be given weight. They have to be considered by the judiciary and the government. The government's response must be complete, must respond to the recommendations themselves and must not simply reiterate earlier submissions that were made to and substantively addressed by the commission.

The emphasis at this stage is on what the commission has recommended. 24 The response must be tailored to the commission's recommendations and must be "legitimate" ( Reference , at paras. 180-83), which is what the law, fair dealing and respect for the process require. The government must respond to the commission's recommendations and give legitimate reasons for departing from or varying them. 25 The government can reject or vary the commission's recommendations, provided that legitimate reasons are given.

Reasons that are complete and that deal with the commission's recommendations in a meaningful way will meet the standard of rationality. Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission's recommendations have been taken into account and must be based on facts and sound reasoning.

They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation. The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately. They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence. 26 The reasons must also rely upon a reasonable factual foundation.

If different weights are given to relevant factors, this difference must be justified. Comparisons with public servants or with the private sector may be legitimate, but the use of a particular comparator must be explained. If a new fact or circumstance arises after the release of the commission's report, the government may rely on that fact or circumstance in its reasons for varying the commission's recommendations.

It is also permissible for the government to analyse the impact of the recommendations and to verify the accuracy of information in the commission's report. 27 The government's reasons for departing from the commission's recommendations, and the factual foundations that underlie those reasons, must be clearly and fully stated in the government's response to the recommendations.

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, as will be explained below. [ 23 ] In the commission process, economic considerations are part of the evidence heard by the Tribunal and in respect of which government can make submissions.

The issue of judges’ remuneration is not decided in a vacuum chamber sealed off from economic reality. [ 24 ] However, the economic impact of the pandemic occurred years following the date that the recommendations ought to have taken effect. Later economic developments are irrelevant to the setting of compensation for a defined period.

Changed economic conditions may legitimately be taken into account by the legislature so long as those conditions have impact during the period under consideration. [ 25 ] The suggestion that changed economic conditions justified not dealing with provincial court judges’ remuneration in 2020 as part of a general fiscal restraint does not hold up based on the evidence submitted in respect of this Application.

In the spring and summer of 2020, the Government negotiated new contracts with several public service unions that provided for increases to income and other benefits. [ 26 ] The suggestion by one MHA that the judges should be required to negotiate their remuneration as civil servants do, is not constitutionally viable.

As noted, the Supreme Court of Canada has determined that judges are constitutionally prohibited from engaging in direct negotiations with government. [ 27 ] The rather tepid remarks offered by the Government in support of the Resolution encouraged the unconstitutional politicization of the process.

[ 28 ] The Government was in a minority position at the time that the Resolution was first introduced. We do not know whether the Resolution would have nonetheless passed in the House because, after a short time, debate was adjourned.

The Minister invited Members on both sides of the House to attend a briefing by solicitors from the Department of Justice and Public Safety on the principle of judicial independence and the constitutional obligations of executive and legislative branches in respect of judicial remuneration. [ 29 ] A general election in January 2021 returned the previous government to a majority position in the House of Assembly. [ 30 ] The Government has never brought the Resolution forward to the House for a vote and it has not explained, in the House or in any public briefing why it has not brought the Resolution forward for a vote.

This Application [ 31 ] The judges issued this Application on July 17, 2020. In respect of the second Wicks’ Tribunal report (the judges seek other relief relating to a previous Order of Faour J, which I will discuss later), the judges seek the following: (

a) A Declaration and determination that the Respondents have not provided constitutionally adequate and legitimate reasons sufficient to justify departure from full implementation of the recommendations of the 2017 Wicks Tribunal; (

b) A Declaration that the 2017 Wicks Report dated June 4, 2019, including all of its recommendations, is in full force and effect as of July 25, 2019, and that the Respondents are required to implement the Tribunal’s recommendations effective April 1, 2017, or such other date as this Court shall order, and an Order in the nature of mandamus requiring the Respondent Minister of Justice and Public Safety and Attorney General to fully implement said recommendations; (

c) An Order that the Respondents cease and desist from interfering with the judicial independence of the judges of the Provincial Court of Newfoundland and Labrador and fully implement the recommendations of the 2017 Wicks Tribunal. [ 32 ] The Government never filed a pleading or any Affidavit in response to the relief sought in this aspect of the Application. It did not respond at all until it filed its Brief in January 2022. In its Brief, the Government essentially agreed with the articulation of principles relating to the judicial remuneration process that I outlined earlier.

However, it drew a distinction between the executive and legislative branches and argued that the executive had met its obligations by bringing a resolution recommending adoption of the second Wicks Tribunal report to the House of Assembly. It then argued that the reasons offered by the Opposition during debate on the Resolution constituted valid reasons, based on dire circumstances, for varying or rejecting the recommendations in the Report.

It concluded its argument by submitting that the “the Commission process was respected by the Government and the purposes of the Commission- preserving judicial independence and depoliticizing the setting of judicial remuneration- was achieved.” [ 33 ] The Government response never offered any explanation as to how the constitutional obligations of the executive and legislative branches could have been fulfilled by the mere tabling of the report and adjournment of a resolution without a vote.

The executive, including the Respondent Minister, remained at all material times in control of the legislative agenda, but neither he nor any other member of Cabinet nor the Government House Leader brought the Resolution back to the House for further debate or a vote.

Further, there is no evidence that any other member of the House sought to bring the Resolution, or a similar resolution, back to the House. [ 34 ] During oral argument in this proceeding, counsel for the Government conceded that the Minister or Government House Leader could have brought the Resolution back to the House at any time during its sitting. Counsel could offer no explanation as to why this has not been done.

Most importantly, counsel conceded that the executive is obligated to bring this back to the legislature, and the legislature is required by the Act, and constitutionally obligated, to vote on the Resolution Remedy [ 35 ] The conclusion that clearly follows from the preceding discussion is that both the executive and legislative branches have failed to fulfill their statutory obligations and constitutional duties to deal with the recommendations regarding judicial remuneration made by the 2017 Wicks Tribunal.

Government now concedes this. [ 36 ] As a result of the concessions made during argument by Government counsel, there is no need to consider many of the extensive arguments articulated by the parties in their briefs. The only question remaining is the appropriate remedy for the failure of the executive and legislative branches to fulfill their constitutional and statutory obligations. [ 37 ] The judges ask that this Court order that the recommendations regarding their remuneration for the period 2017 to 2021 be immediately and retroactively implemented.

The Government asks that I remit this matter back to the House to do its duty and either approve, vary, or reject the recommendations. [ 38 ] The Supreme Court of Canada in Bodner held that the usual remedy that the court will apply in response to circumstances such as these is to refer the matter back to the legislature or the executive, whichever branch is responsible for the decision to approve, vary, or reject commission recommendations: 42 The limited nature of judicial review dictates the choice of remedies .

The remedies must be consistent with the role of the reviewing court and the purpose of the commission process. The court must not encroach upon the commission's role of reviewing the facts and making recommendations.

Nor may it encroach upon the provincial legislature's exclusive jurisdiction to allocate funds from the public purse and set judicial salaries unless that jurisdiction is delegated to the commission. … 44 In light of these principles, if the commission process has not been effective, and the setting of judicial remuneration has not been "depoliticized", then 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. Should the commission no longer be active, the government would be obliged to appoint a new one to resolve the problems. Courts should avoid issuing specific orders to make the recommendations binding unless the governing statutory scheme gives them that option. This reflects the conclusion in Mackin v. New Brunswick (Minister of Justice) , [2002] 1 S.C.R. 405 , 2002 SCC 13 (S.C.C.) , that it is "not appropriate for this Court to dictate the approach that should be taken in order to rectify the situation.

Since there is more than one way to do so, it is the government's task to determine which approach it prefers" (para. 77) [ 39 ] The judges argue that there is ample precedent to demonstrate that in certain circumstances, the Court will bypass the Government and order the implementation of commission recommendations. I accept the following

summary of those circumstances, and the accuracy of the holdings of the decisions cited in support of each proposition, set out in the judges’ Brief: • Where implementation was seen to accord with government’s position, once any new information was properly considered: Provincial Court Judges’ Association (New Brunswick) v. New Brunswick (Minister. of Justice) , 2009 NBCA 56 ; • Where the government acted in bad faith or egregiously failed to achieve depoliticization of the process: Provincial Judges' Association of Manitoba v.

Manitoba , 2013 MBCA 74 ; • Where the evidence does not provide any basis for confidence that the government will respect the process: Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador , 2018 NLSC 140 ; • Where there appears to be no basis for the government to reject the recommendations once constitutionally invalid reasons have been eliminated: Provincial Court Judges' Association. of British Columbia v.

British Columbia (Attorney General) , 2015 BCCA 136 ; • Where timeliness demands it because the time period covered by the recommendations has passed and no further delay should be allowed: Provincial Judges' Association of Manitoba v. Manitoba ; Provincial Court Judges' Association. of British Columbia v. British Columbia (Attorney General) ; Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador 2018 NLSC 140 ; Conférence des juges du Québec c.

Québec (Procureur général) , 2007 QCCS 2672 ; • Where there has already been judicial review and a referral back to government but has again rejected the recommendations: Conférence des juges du Québec c. Québec (Procureur général); [ 40 ] Several of these circumstances are also present in this case. Implementation does accord with the position of the executive expressed in the Resolution put before the House of Assembly. The legislature politicized the process during the debate in the House of Assembly, and the executive did not act to stop this.

The Respondents in argument did not suggest that there were other, constitutionally valid, reasons for rejecting or varying the Tribunal recommendations. There has been preposterous delay in this case. [ 41 ] On the other hand, as Faour J noted in Newfoundland and Labrador Association of Provincial Court Judges v.

Newfoundland and Labrador 2018 NLSC 140 , at paragraph 179 : “Bad faith, in law, requires evidence of an animus, a state of mind that convinces the court that the perpetrator intended to cause harm.” He did not find bad faith in that case. [ 42 ] I am likewise not prepared to find bad faith in the absence of evidence. Indeed, it would be difficult in any event to find bad faith on the part of a legislature.

As in the case before Faour J, there is evidence here showing lack of respect for the principles underlying the process, but that alone does not establish bad faith. [ 43 ] Bypassing the legislative branch by ordering implementation of the Tribunal recommendations does not encourage respect for the process in the future. The statutory duties and constitutional obligations to deal with the recommendations of the Tribunal lie with the executive and the legislature.

The result of an order from this Court imposing implementation would benefit the judges in the short term but would allow the other branches to evade their constitutional and statutory obligations and duties. In the long term, that would not achieve respect for the process but would encourage more litigation relating to the recommendations of succeeding Tribunals. [ 44 ] The judges express a lack of confidence that the executive and the legislature will respond appropriately to an order of the Court remitting the matter back to those branches.

I understand that lack of confidence, especially given that the executive could have brought the original or a similar resolution back to the House for debate and vote anytime that the House was sitting between June 2020 and now. However, I am not prepared to find without evidence that the other branches will flagrantly fail to respect an order of this Court directing that they fulfill their constitutional and statutory obligations to deal with the Tribunal recommendations. [ 45 ] The judges are also concerned with further delay involved in remitting the matter back to the executive and the House.

I am informed by counsel that the House of Assembly is scheduled to sit for eight days from April 4 to April 14, and that the first order of business for the House during that period will be debate and vote on the provincial budget for the upcoming fiscal year.

I have not been informed by counsel of any other immediately pressing business in the House. [ 46 ] The best remedy in this case, which does not displace the duties and obligations from the branches where they properly reside, yet still accounts for the judges’ legitimate concerns, is an order requiring the Government to deal with the Tribunal recommendations very soon, but under which the Court still retains some level of supervision so that the judges do not find themselves in the position of having to initiate new court proceedings in the event that the Government fails to act. [ 47 ] Therefore, I will order the following: 1.

The Minister of Justice and Public Safety shall, not later than April 14, 2022, present a Resolution to the House in the same terms as that presented in June 2020 recommending implementation of the recommendations of the 2017 Wicks Tribunal; 2. The Minister of Justice and Public Safety and the Government House Leader shall ensure that the House of Assembly votes on that Resolution no later than April 14, 2022;

3. If the House of Assembly does not vote to approve the recommendations of the 2017 Wicks Tribunal by April 14, 2022, thencounsel for the judges may immediately thereafter

schedule with the Registry of this Court a return date for argument before me withinthis proceeding on whether this Court should order the implementation of the recommendations of the Wicks tribunal. [48] In their Originating Application, the judges also ask for declaratory relief related to the manner in which the Government hasresponded to the 2017 Wicks Tribunal Report.

They seek declarations that the Government has acted in an unconstitutional manner,interfered with judicial independence, failed to respect the remuneration process, and failed to provide constitutionally valid reasons forrejecting the Tribunal recommendations. [49] A declaration is a discretionary remedy that may be used to formally state a legal position. It is a broad, equitable remedy.

However, declaratory relief ought not be granted where there is other, equally effective or more effective relief available: Kourtessis v.Minister of National Revenue 1993), (SCC), 102 D.L.R. (4th) 456, 14 C.R.R. (2d) 193 (S.C.C.). In this case, the OrderI have outlined provides the judges with effective relief in respect of the recommendations of the 2017 Wicks Tribunal. I see no effectiveneed for declaratory relief and the application for such relief is dismissed.

Further Relief regarding Previous Order of Faour J [50] The decision of Faour J in Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador2018 NLSC 140 dealt with issues similar to those that I have decided relating to the implementation of Tribunal recommendations. Afterthat decision, the judges brought another application seeking a declaration of invalidity of the Act, s. 28.2 on the basis that it did notsufficiently comply with constitutional standards for ensuring judicial independence.

Faour J dismissed the application for invalidity:Newfoundland and Labrador Association of Provincial Court Judges v. Newfoundland and Labrador, 2018 NLSC 224. He found thatthe problems in the process in this province did not arise from the statute, which complied with minimal constitutional standards, butwith the lack of respect for the process shown by the Government, which manifested in continuous delays in the dealing with the work ofsuccessive tribunals.

Faour J said that the constitutional obligations of government extended to active protection of the independence ofthe judiciary, and that the government in this province had failed in that obligation. He suggested that a different statutory model couldalleviate the problems in the process: 66 I suggest that discussions between the Association and the Attorney General consider the comments in this decision, in the WicksTribunal Decision, as well as the jurisprudence which has arisen, starting with the decisions of the Supreme Court of Canada in the PEIReference in 1997, and in Bodner in 2005.

It would also be appropriate to consider whether the legislative models in other jurisdictionsmay provide some insight into improving the process in this province.

The objectives of the discussions should be to prepareamendments to the legislation which would have the effect of ensuring regular and predictable appointment of Tribunals, a specific timefor the submission of a report, prospective application of the recommendations of the Tribunal, and parameters to govern the response ofthe government to the recommendations. [51] Faour J therefore ordered: 68 The Attorney General, or his designate, is directed to enter into discussions with the Applicants, as represented by the Associationof Provincial Court Judges, with the objective of considering amendments to the legislation respecting the salaries and benefits tribunalestablished under the Act, such discussions to consider: 1.

Comparable legislation in other jurisdictions and whether a different legislative model may be appropriate in this jurisdiction; 2. How to avoid the delays in the appointment and reporting of the tribunal, and the response to the recommendations of the tribunal bythe legislature; 3. Mechanisms to minimize the potential for politicization of the tribunal process, and its consideration by the government and thelegislature; and, 4.

Other matters which either party may wish to propose to ensure that future tribunal processes are respected, effective anddepoliticized. [52] The judges say that the Attorney General has not complied with that Order of Faour J and in this proceeding they ask for adeclaration of non-compliance in respect of it. [53] I understand the intent of the Order of Faour J and the reasons why he issued it. His Order was issued in an effort to direct theparties to fix a serious, intractable problem.

Due to the nature of the matters he was considering, however, it is difficult to measurecompliance with the Order which he issued. The operative part of his Order was a direction that the parties enter into discussionsregarding improvements to the process so as to reduce the systemic delays. [54] The judges filed Affidavit evidence that set out correspondence initiated by their counsel requesting the Government to startdiscussions as envisioned by Faour J. There was, regrettably, little in the way of constructive response by the Government until after thecurrent application was issued.

However, the Respondents filed Affidavit evidence that demonstrates that the Government has nowresponded. In September 2021, Government wrote to the judges’ counsel and asked for a position regarding a number of possiblereforms, including the adoption of a negative resolution method or the yearly automatic salary adjustments tied to average salaries ofAtlantic Canada provincial court judges. The judges responded to those proposals on October 14, 2021.

On November 18, 2021, theGovernment wrote to the judges’ counsel again, this time suggesting that reforms to the remuneration process be dealt with as part of alarger overhaul of the Act. There has been further exchange of correspondence since that time. [55] Therefore, the parties are now engaged in the kind of discussions that were the subject of the Order of Faour J, even thoughthose discussions only really got started three years later.

But, because those discussions have started and there was no timeline includedwithin the Order, the judges’ application for a declaration that the Attorney General has failed to comply with the Order is dismissed.

Costs [56] The judges have been essentially successful in this proceeding and are entitled to their costs in the ordinary course. [57] The judges, however, ask for solicitor-client costs. Solicitor-client costs are available whenever a parties’ actions during theevents that precipitated the litigation or in the course of conducting the litigation are deserving of some rebuke from the Court. [58] The decision of the Court of Appeal in Newfoundland Association. of Provincial Court Judges v.

Newfoundland, 2000, isconsidered a leading case in respect of the principles underlying an award of solicitor-client costs in cases such as this one. The trialjudge in that case had awarded solicitor-client costs to the judges on the basis that because the litigation had been between two branchesof government, one of which was fully funded from the public purse, equity demanded that the costs of the judiciary also be funded:Newfoundland Association. of Provincial Court Judges v. Newfoundland, (NL SC), 163 Nfld. & P.E.I.R. 319, 503A.P.R. 319 (Nfld. S.C.(T.D.)), at paras. 68-71.

The Court of Appeal rejected that reasoning, but still upheld the award of solicitor-clientcosts on ordinary costs principles: 309 The judges in this case deserved better treatment than they received. In saying that, I do not mean to suggest that their claims thatthey deserved an increase in remuneration and benefits were necessarily justified. That is not the issue before this Court. What I amsuggesting, however, is that they deserved to have their perceived grievances respecting monetary issues dealt with in a proper mannerthat respected both constitutional principle and the policies behind their own statute.

The approach taken by the government, no doubtinfluenced by the very burdensome economic problems of the day, was to defer, delay and deflect, rather than to focus, face andfacilitate. A review of some of the actions taken in this regard includes: (

a) deferring, instead of dealing with, the Whalen tribunal report when it was first presented to the legislature, thereby derogating fromthe principle of periodic reviews of judicial compensation mandated by the Provincial Court Act, 1991; (

b) failing to respond to the reasoning in the Whalen report which called for improved treatment of the judges notwithstanding theproposed restraint legislation, especially in light of the special treatment accorded to other groups; (

c) failing to consider the claims of the judges according to the government's own espoused principle, that they should not be subjectedto a disproportionate burden, in the context of other government employees being able to continue to receive real improvements in theirpay through step increases; (

d) deflecting the issue by requiring a further "reclassification" review, thereby violating the principle of periodic review, underminingthe tribunal process, and not respecting the principle of separation of powers by treating the judges as analogous to civil servants; (

e) failing to share the results of the reclassification review with the judges or to bring the matter back to the legislature forconsideration, as required by its own resolution; (

f) derogating from its own espoused principle of acceptance of the notion of a classification review by refusing to honour what its ownappointed reclassification advisors recommended as fair and reasonable according to principle, without further discussion and debate; (

g) failing to honour its own statute requiring the appointment of tribunals on a specified periodic basis by delaying the appointment ofthe Roberts tribunal for close to one year; (

h) failing initially to address the recommendations in the Roberts report and, in violation of constitutional principle and its ownlegislation, deciding to settle salaries by direct negotiation between it and the judges. 310 It is worth remembering that the vast majority of these actions amount to derogations from or frustrations of the principlesrespecting fair treatment of provincial court judges as contained in the government's own legislation, quite apart from the application ofany constitutional principles. 311 The irony of this situation is that facing and addressing the requests of the judges would not necessarily have rent the fabric of thegovernment's economic restraint plan.

It would not inevitably have led to having to pay them more, but it would have given the judgesthe assurance that the government was not only prepared to mouth the rhetoric of judicial independence, but was prepared truly to respectit. 312 In saying this I do not mean to suggest that the government deliberately set out to undermine the principle of judicialindependence in the province. I accept that it acted with good intentions.

Nevertheless, their responses to the economic situation causedit, it would appear, to overlook the impact that their approach was having, by its cumulative effect, on these fundamental constitutionalconsiderations and on their own policies regarding treatment of judges as a separate group, as reflected in the Provincial Court Act, 1991.In this mild sense, their actions can be said to be deserving of reproof.

Thus, I conclude that the award of solicitor-client costs in thiscase, while not justifiable on the ground enunciated by the trial judge, is nevertheless capable of being supported on traditional principlesas an exercise of judicial discretion. I would therefore not disturb it. [59] In this case, I also find that on the application of ordinary costs principles, the judges should be awarded costs on a solicitor-client basis.

The conduct of both the executive and legislature in this case match the description of the conduct considered by the Courtof Appeal described at para. 310 as actions that “amount to derogations from or frustrations of the principles respecting fair treatment ofprovincial court judges as contained in the government's own legislation, quite apart from the application of any constitutionalprinciples.” [60] Moreover, the conduct of this litigation adds further dimensions related to the justification for solicitor-client costs.

TheResolution approving the recommendations was brought to the House of Assembly in June 2019 and not debated until June 2020. Debate was adjourned, and no vote was taken. The judges brought this Application in July 2020. At any time that the House was sittingbetween June 2020 and the hearing of this Application, the Minister or the Government House Leader could have brought this Resolution

forward to close debate and vote. They did not do so. They instead defended this litigation, even though the Minister had told his colleagues in the House that the Government would lose litigation like this. The parties filed substantial written briefs dealing with the primary issue in this matter as to whether the Government had appropriately responded to the Tribunal recommendations. The judges’ counsel addressed this issue in a full day of hearing.

After all that time and effort, Government counsel said that the Minister and Government would resile from their original position and concede that they ought to have brought the Resolution forward for a vote, and, moreover, could offer no explanation for not having done so. In light of that, this Application should not have been necessary at all, let alone allowed to proceed for almost two years after it was issued. [ 61 ] The judges shall have their costs of this Application taxed on a solicitor-client basis.

CONCLUSION and DISPOSITION [ 62 ] The Applications for declaratory relief are dismissed, but I order the following: 1. The Minister of Justice and Public Safety shall not later than April 14, 2022, present a Resolution to the House in the same terms as that presented in June 2020, recommending implementation of the recommendations of the 2017 Wicks Tribunal; 2. The Minister of Justice and Public Safety and the Government House Leader shall ensure that the House of Assembly votes on that Resolution no later than April 14, 2022; 3.

If the House of Assembly does not vote to approve the recommendations of the 2017 Wicks Tribunal by April 14, 2022, then counsel for the judges may immediately thereafter

schedule a return date with the Registry of this Court for argument before me within this proceeding on whether this Court should order the implementation of the recommendations of the Wicks tribunal; and 4. The Applicants shall have their costs of this Application taxed on a solicitor-client basis. _____________________________ Daniel M. Boone Justice