The Judges of the Provincial Court v. Family Court, 2020 NSSC 12

SUPREME COURT OF Nova Scotia Citation: Judges of the Provincial Court and Family Court of Nova Scotia (Nova Scotia Provincial Judges’ Association) v.

Nova Scotia (Attorney General) , 2020 NSSC 12 Date: 20200110 Docket: Hfx No. 463248 Registry: Halifax Between: The Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges’ Association Applicants and The Honourable Minister of Justice and Attorney General of Nova Scotia and the Honourable Minister of Finance and Treasury Board, representing Her Majesty the Queen in right of the Province of Nova Scotia Respondents Judge: The Honourable Justice Ann E.

Smith Heard: December 17, 2019, in Halifax, Nova Scotia {Motion Decision to Compel Answers to Interrogatories} Counsel: Susan Dawes, for the Applicants Andrew D.

Taillon, for the Respondents By the Court: Introduction [ 1 ] The Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges' Association (the “Applicants”) move for an order compelling the Respondents (the Attorney General of Nova Scotia and the Honourable Minister of Finance and Treasury representing Her Majesty the Queen in right of the Province of Nova Scotia) (“AGNS”) to answer Interrogatories served on them June 20, 2019, pursuant to Civil Procedure Rule 19.08.

The AGNS responded to each of the Interrogatories by stating that the information sought was not relevant. One of the Interrogatories was answered substantively by the AGNS and is not in issue. Background [ 2 ] The motion is brought pursuant to the Applicants’ Notice of Application in Court (the “Notice”) respecting a constitutional challenge to sections 8-14 of the Financial Measures

(2016) Act (and the affected amended sections of the Provincial Court Act , R.S., c. 238, s. 1; 1992, c. 16, s. 18 ) (the “Constitutional Challenge”).

These provisions removed the binding nature of recommendations made by the Nova Scotia Provincial Judge's Salaries and Benefits Tribunal as to salaries and benefits for judges. [ 3 ] The Applicants claim in the Constitutional Challenge that “by removing the binding nature of the Tribunal process, the Province no longer provides an effective process for the determination of judicial compensation and has politicized, and/or failed to depoliticize, the setting of judicial compensation.” The Applicants seek a declaration and order that the relevant sections of the Financial Measures

(2016) Act and the Provincial Court Act are unconstitutional on the basis that they violated “the unwritten principles of judicial independence in the Constitution” as well as

section 2(

d) and 11(

d) of the Canadian Charter of Rights and Freedoms . [ 4 ] The grounds for the relief sought in the Notice are as follows:

1. The applicants, the judges of the Provincial Court and Family Court of Nova Scotia, all reside in Nova Scotia. 2.

The respondents, the Minister of Justice and Attorney General of Nova Scotia and the Minister of Finance and Treasury Board of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia, are obliged, as a matter of constitutional principle, to ensure that any changes to judicial compensation are determined only after recourse to an independent, objective and effective process which achieves the goals of depoliticizing the setting of judicial compensation and protecting judicial independence. 3.

Until the 2016 amendments, the Provincial Court Act had long provided an effective process for setting judicial compensation. This included that a Provincial Court Judges' Salary and Benefits Tribunal (the “Tribunal”), appointed every three years, made binding determinations of all aspects of judicial compensation. 4. On May 20, 2016, the Financial Measures

(2016) Act was passed and received royal assent. It had the effect, in part, of amending various sections of the Provincial Court Act to provide that the Tribunal's determinations are no longer binding and permit the Governor in Council to confirm, vary or reject the Tribunal's recommendations. 5. After receiving written and oral submissions from interested parties, the Provincial Judges’ Salary and Benefits Tribunal issued its Report on November 18, 2016, setting out its recommendations for judicial compensation for the period April 1, 2017 to March 31, 2020.

On February 2, 2017, the Governor in Council issued Order in Council 2017-24, whereby it confirmed four of the recommendations in the Report but rejected its recommendations for salary increases. 6. The applicants state that, by removing the binding nature of the Tribunal process, the Province no longer provides an effective process for the determination of judicial compensation and has politicized, and/or failed to depoliticize, the setting of judicial compensation. [ 5 ] In a separate proceeding, filed on March 7, 2017, the Applicants seek judicial review of Order in Council 2017-24 on numerous grounds.

On June 5, 2017 the Applicants filed a notice of motion seeking an order that the record on the judicial review be supplemented to include a “Report and Recommendation” referred to in Order in Council 2017-24 (which the Respondents had not included in the record on judicial review) and an affidavit of the Honourable James Burrill, a Judge of the Provincial Court (the “2017 Burrill Affidavit”). [ 6 ] That motion was heard on September 20 and 21, 2017 by this Court. This Court also heard, at the same time, the Applicants’ motion to consolidate the judicial review proceeding with the Constitutional Challenge.

The decision of this Court, issued on March 6, 2018, determined that the Report and Recommendation formed part of the judicial review record, except for passages to which solicitor-client privilege applied and that the 2017 Burrill Affidavit was added to the record on review, with the exception of certain provisions of the Affidavit which this Court determined should be excluded as irrelevant. The Applicant’s motion for consolidation was dismissed. This Court determined that the Constitutional Challenge should be heard before the judicial review. (See: Nova Scotia Provincial Judges' Association v.

Nova Scotia (Attorney General) , 2018 NSSC 13 .) [ 7 ] The Respondents sought leave, which they obtained, to appeal this Court’s decision to the Nova Scotia Court of Appeal. The Respondents plead that the entirety of the Report and Recommendation and the 2017 Burrill Affidavit should be excluded from the record. The Applicants sought leave to cross-appeal, which they obtained. They plead that the excluded passages from the Report and Recommendation and from the 2017 Burrill Affidavit should be added to the record.

No appeal was filed in respect of the decision on the consolidation motion. [ 8 ] The Nova Scotia Court of Appeal heard the appeal and cross-appeal on October 2, 2018. In its October 30, 2018 decision, the Court of Appeal upheld this Court’s findings that the Report and Recommendation formed part of the record on judicial review, with the exception of the portions this Court found were protected from disclosure by solicitor and client privilege.

The Court of Appeal dismissed the Respondents’ appeal seeking to exclude the entirety of the Burrill Affidavit, but admitted a further paragraph of that Affidavit, which this Court had excluded. (See Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia , 2018 NSCA 83 .) [ 9 ] The Respondents were granted leave to appeal the Court of Appeal’s decision with respect to the Report and Recommendation forming part of the record to the Supreme Court of Canada. The appeal was heard on December 9, 2019.

The judgment of the Court was reserved and was not rendered prior to this Court’s decision on this motion. The Respondents did not appeal the Court of Appeal’s findings with respect to the admissibility of the 2017 Burrill Affidavit to supplement the record on the judicial review. [ 10 ] Neither counsel for the parties indicated that this Court’s decision on the within motion should wait until after the Supreme Court of Canada’s decision.

The Interrogatories [ 11 ] The AGNS answered each of the following Interrogatories by stating, “I refuse to answer as the information is irrelevant and will not lead to relevant information”: 1. Did the Association’s legal counsel, Bruce Outhouse, Q.C. speak with the Acting Deputy Minister of Justice, Thilairani Pillay, Q.C., on or about November 12, 2015, regarding when the binding recommendations of the Tribunal would be implemented and was he assured that the Order in Council would be signed prior to Christmas? 2.

During the fall of 2015, was the Province engaged in collective bargaining with a number of public sector unions, including the Nova Scotia Teachers’ Union (“NSTU”) and the Nova Scotia General Employees’ Union (“NSGEU”)?

3. In or about mid-November, 2015, were tentative agreements reached by the Province with the NSTU and NSGEU (the “NSTU Tentative Agreement” and “NSGEU Tentative Agreement”, respectively)? 4. Was a ratification vote held by the NSTU in early December, 2015 and did a majority of the membership rejected ( sic ) the NSTU Tentative Agreement? 5. In January 2016, did the NSGEU delay its ratification vote and reverse its recommendation that the NSGEU Tentative Agreement be accepted? 6. Did a majority of the NSGEU’s members ultimately vote to reject the NSGEU Tentative Agreement in December 2016? 7.

On or about December 17, 2015, did the Honourable Premier of Nova Scotia Stephen McNeil (the “Premier”) make the statements attributed to him in the copy of the CTV Atlantic News

article attached as Exhibit 1? 8. On February 9, 2017, did the Premier engaged ( sic )in a media scrum outside Cabinet (the “Scrum”)? 9. Does the transcript attached as Exhibit 2 fully and accurately set out the statements made by the Premier and the questions asked of him by various reporters in the Scrum? 10. On February 14, 2017, was the Premier interviewed by CTV television reporter Steve Murphy, of CTV News Atlantic (the “Interview”)? 11. Does the transcript attached as Exhibit 3 fully and accurately set out the statements made by the Premier and the questions asked of him by Mr. Murphy in the Interview? 12.

On June 7, 2016, did Her Majesty the Queen in Right of the Province of Nova Scotia, as represented by the Public Service Commission, and the Nova Scotia Crown Attorneys’ Association, enter into the agreement attached as Exhibit 4, which provides for final and binding arbitration in accordance with the terms set out therein? 13. Was there an Order in Council implementing the recommendation of the Nova Scotia Provincial Judges Salary and Benefits Tribunal Report and Recommendations for the period April 1, 2008 to March 31, 2011?

The Standard for Assessing Relevancy [ 12 ] The parties agree that “trial relevancy” is the applicable standard, but disagree as to its application to the information sought by the questions posed in the Interrogatories. Several Civil Procedure Rules are engaged. [ 13 ] Rule 14.01 provides as follows: Meaning of “relevant” in

Part 5 14.01(1) In this Part, “relevant” and “relevancy” have the same meaning as at the trial of an action or on the hearing of an application and, for greater clarity, both of the following apply on a determination of relevancy under this Part (

a) a judge who determines the relevancy of a document, electronic information, or other thing sought to be disclosed or produced must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information or other thing relevant or irrelevant; (

b) a judge who determines the relevancy of information called for by a question asked in accordance with this

Part 5 must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the information relevant or irrelevant.

(2) A determination of relevancy or irrelevancy under this

Part is not binding at the trial of an action, or on the hearing of an application. With regard specifically to Interrogatories, Rules 19.03 and 19.07 are relevant and provide: Questions that may be asked 19.03 A demand for answers must demand answers that are not privileged and are relevant or provide information that is likely to lead to relevant information. Response 19.07(2) The person must answer each question, unless the question is of one of the following kinds: (

a) the question calls for information that is irrelevant and will not lead to relevant evidence. … [ 14 ] In Saturley v. CIBC World Markets Inc ., 2019 NSSC 4 (N.S.S.C.) Moir J. stated that the determination of relevancy is made on the pleadings and evidence known to the judge when the ruling is made. Justice Moir in Saturley also reviewed certain differences between the 1972 Civil Procedure Rul es and the 2008 Civil Procedure Rules . The standard for determining whether a document should

be produced pursuant to the 1972 Rules was a ”semblance of relevance” to a matter in the proceeding. The 2008 Rules make it clear that the standard or test on motions such as the within motion is “trial relevancy.” Justice Moir highlighted the difficulties caused by the “semblance of relevance” test at para. 15: However, no one suggests that demands for, or production of, irrelevant information furthers the ends of justice in any way.

In that regard, the 2008 Rules come to grips with a very serious problems not foreseen in 1972. [ 15 ] I interpret Justice Moir’s reference to the “very serious problems” to be the production of irrelevant information, and the costs and inefficiencies related to that production. [ 16 ] At para. 43 of Saturley , Justice Moir discusses the role of pleadings in the context of the new standard for relevancy created by the 2008 Rules. He states: Since “the current Rule was intended to limit the effort and expense involved in pre-trial procedures” (Murphy , para. 10) [ Murphy v.

Lawton’s Drug Stores Ltd ., [2010] N.S.J. 409 (S.C.) ] and since it requires judges to do something that used to be considered too difficult, the Rule marks a departure from a kind of practice that may have been tolerated before. As Mr. Keith points out, the requirements for greater precision in pleadings found in Rule 38.02 mark the same departure.

The cost of litigation demands that litigants enter a proceeding, make disclosure, undertake discovery, and otherwise move to trial with as precise a notion of their claim or defence as is possible. [emphasis added] [ 17 ] Justice Moir cites Rul e 38.02 in this excerpt from Saturley . Rule 38.02 is the Rule which sets out the general principles of pleading. The Rule provides: General principles of pleading 38.02(1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading.

(2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following: (

a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (

b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact. [emphasis added] [ 18 ] Accordingly, a determination of relevance must be made with reference to the material allegations in the pleadings. I refer in that regard to the decision of LeBlanc J. (as he then was) in Wilson Fuel Co. v. Power Plus Technology Inc ., 2015 NSSC 304 (N.S.S.C.) in the context of a request for disclosure of documents under Rule 14: [17] A determination of relevance must therefore be made with reference to the facts in issue as identified in the pleadings.

However, even if alleged in the pleadings, a fact will not truly be in issue unless it is a necessary and material allegation. To meet the test for relevance, then, (1) the document or electronic information must prove or render probable the past, present or future existence or non- existence of a fact; (2) the fact must relate to an allegation set out in the pleadings; and (3) the allegation must not be unnecessary or immaterial to the claim or defence: see generally The Law of Evidence in Canada at 2.43 – 2.49. [ 19 ] With that review of the relevant Rules and case law, I turn to the Interrogatories at issue.

Decisions on each Interrogatory [ 20 ] On this motion, the Court has the Notice, the AGNS’ Notice of Contest and the Affidavit of the Honourable Judge James H. Burrill, sworn October 10, 2019 (the “2019 Burrill Affidavit”). [ 21 ] In their written and oral submissions, counsel grouped the Interrogatories into various categories. I intend to do the same in this decision. Interrogatories 1 – 6 [ 22 ] I will repeat Interrogatories 1 – 6 for ease of reference: 1.

Did the Association’s legal counsel, Bruce Outhouse, Q.C. speak with the Acting Deputy Minister of Justice, Thilairani Pillay, Q.C., on or about November 12, 2015, regarding when the binding recommendations of the Tribunal would be implemented and was he assured that the Order in Council would be signed prior to Christmas? 2. During the fall of 2015, was the Province engaged in collective bargaining with a number of public sector unions, including the Nova Scotia Teachers’ Union (“NSTU”) and the Nova Scotia General Employees’ Union (“NSGEU”)? 3.

In or about mid-November, 2015, were tentative agreements reached by the Province with the NSTU and NSGEU (the “NSTU Tentative Agreement” and “NSGEU Tentative Agreement”, respectively)? 4. Was a ratification vote held by the NSTU in early December, 2015 and did a majority of the membership rejected ( sic ) the NSTU Tentative Agreement?

5. In January 2016, did the NSGEU delay its ratification vote and reverse its recommendation that the NSGEU Tentative Agreement be accepted? 6. Did a majority of the NSGEU’s members ultimately vote to reject the NSGEU Tentative Agreement in December 2016? [ 23 ] In general terms, the above questions call for information respecting supposed delay on the part of the Government in the implementation of the 2014 Tribunal’s recommendations regarding judicial compensation for the period 2014 – 2017.

That was the last Tribunal process before the above-noted legislative amendments which removed the binding nature of the Tribunal process. [ 24 ] The questions also call for information respecting collective bargaining that the Government was engaged in with two public sector unions around the same time as the alleged delay. [ 25 ] It is important to note that the main portion of the Notice which the Applicants rely on to establish the relevance of the information sought in these Interrogatories is paragraph 6 which states: The applicants state that, by removing the binding nature of the Tribunal process, the Province no longer provides an effective process for the determination of judicial compensation and has politicized, and/or failed to depoliticize, the setting of judicial compensation. [emphasis added] [ 26 ] The AGNS’ Notice of Contest admits most of the facts in paragraphs 1, 2, 4 and 5 of the Notice.

Clearly it is paragraph 6 which is the central allegation against the AGNS and forms the basis for the alleged unconstitutionality of the Act. [ 27 ] The language of paragraph 6 suggests that it is the effect of the removal of the binding Tribunal process which results in a politicized process for setting judicial compensation.

The Applicants say as much in their pre-motion brief: Consistent with para. 6 of the Application, the Applicants will be advancing the case that, by removing the binding nature of the Tribunal process, the effect of the challenged law has been that the Province no longer provides an effective process for the determination of judicial compensation and has politicized, and/or failed to depoliticize, the setting of judicial compensation. [emphasis that of the Applicants’ counsel] [ 28 ] The Applicants say that Interrogatories 1-6 seek information that is relevant, or likely to lead to relevant information regarding: (

a) The circumstances immediately preceding the enactment of the constitutionally challenged amendments to the Financial Measures

(2016) Act . (

b) The Respondents’ political considerations which informed the removal of the binding process; (

c) The Respondents’ bad faith in relation to the 2014 and 2017 Tribunal processes; and (

d) The need for a binding process in order to ensure an effective and depoliticized process for the determination of judicial compensation. [ 29 ] In the Applicants’ pre-motion brief, their theory as to why the answers sought are relevant is as follows: 29.

The information sought pursuant to questions 1 through 6 of the Interrogatories was described at para. 41 of the Applicant’s Motion Brief and relates to delay on the part of the Government in the implementation of the 2014 Tribunal recommendations regarding judicial compensation, i.e., the last Tribunal process before the binding nature of the Tribunal process was removed, which delay was contemporaneous with collective bargaining that the Government was engaged in with two public sector unions.

The answers to these questions could prove or render probable a relationship between the delay in implementation and the Government’s collective bargaining interests regarding public sector employees, which interests were nevertheless largely prevented from derogating from the effectiveness of the 2014 Tribunal process because the process was then binding in nature. The Applicants intend to contrast these circumstances with the 2017 Tribunal process that followed the removal of the binding process. [emphasis added] [ 30 ] As noted above, the pleadings and evidence before the Court determine relevancy.

The 2019 Burrill Affidavit includes certain statements made by Judge Burrill about the timing of the implementation of the 2014 Tribunal as follows: 9.With respect to the 1999, 2002, 2005, and 2011 Tribunal processes, the practice was that the recommendations were implemented about eight (8) to ten (10) weeks of the Tribunal’s report being issued. 10. I believe the 2009 Tribunal’s recommendations were also implemented within eight (8) to ten (10) weeks of the Tribunal’s report being issued.

However, the Applicants have been unable to locate an Order in Council relating to the implementation of the 2008 – 2011 recommendations, and thereby confirm the precise timing relative to when the Tribunal’s report was issued. [ 31 ] The difficulty is that there is no nexus between Judge Burrill’s evidence, and the Applicants’ basis for arguing that the information sought is relevant (as outlined in reasons (

a) through (

c) above) and what is plead in the Notice. There is also nothing in the Notice which speaks to alleged bad faith or political considerations on the part of the Government either as part of the 2017 Tribunal process or the 2014 Tribunal process. Paragraph 6 of the Notice is a conclusionary pleading that the removal of the binding nature of the Tribunal process results in a process that is no longer effective and results in the determination of judicial compensation being politicized. [ 32 ] Counsel for the AGNS acknowledges that reason (d), the need for a binding process in order to ensure an effective and

depoliticized process for the determination of judicial compensation, does engage the pleading. But, reasons (

a) through (

c) all relate to the implementation of previous tribunal recommendations and the government’s bargaining with public sector unions prior to the passing of the impugned legislation. There is nothing plead in the Notice that ties these matters to the need for a binding Tribunal process for Judges. [ 33 ] The Applicants ask this Court to, in essence, “read into” paragraph 6 the need for Tribunal recommendations to be implemented on a timely basis in order to ensure that they are “effective.” For this Court to do so would be to permit the Applicants to circumvent the requirements of Rule 38.02.

In addition, doing so would mean that this Court would be drawing a legal conclusion that quickness equates to effectiveness, something that is clearly beyond the role of this Court on this motion. [ 34 ] I do not accept the Applicants’ suggestion that the AGNS is hardly surprised by their arguments as to delay on the Government’s

part in implementing the 2004 Tribunal Recommendations, which they connect to its dealings with unions. It is true that arguments were raised in the context of the judicial review about alleged bad faith, or the lack of good faith, on the Government’s part. But there is nothing in the Notice which raises anything about bad faith or delay on the Government’s part tied to its dealings with various unions. [ 35 ] Further, as noted above, the focus of paragraph 6 of the Notice of Application is on the effect of the change in the Act . [ 36 ] Questions 1 through 5 deal with events prior to May 20, 2016.

Yet there are no material facts plead about anything which happened, or did not happen, prior to the passing of the impugned legislation. Nor is there anything plead about public sector collective bargaining and how the Government’s stance in that bargaining relates to the impugned changes to the Act .

There is also nothing plead about delay on the Government’s part, or that delay means an ineffective process, all of which are theories that the Applicants advance as to the relevance of the information sought. [ 37 ] In conclusion, I find that Interrogatories 1-6 seek information that is irrelevant to what is plead in the Notice and the AGNS need provide no further responses. Interrogatory 7: On or about December 17, 2015, did the Honourable Premier of Nova Scotia Stephen McNeil (the “Premier”) make the statements attributed to him in the copy of the CTV Atlantic News

article attached as Exhibit 1? [ 38 ] The Applicants say that the information sought by this question is relevant because it is concerned with alleged statements made by the Premier that the Government was looking at changing the binding nature of the Tribunal process, following recommendations by the 2014 Tribunal that departed from the Government’s submission to the Tribunal for 0% compensation increases, which the Applicants say was also the position taken by the Government in its collective bargaining with public sector workers.

It is noted that the Nova Scotia Court of Appeal, on review of this Court’s decision on the augmentation of the record on judicial review, concluded that the information sought by question 7 of the Interrogatories (para. 22 of the 2017 Burrill Affidavit on the judicial review) was relevant to the judicial review. [ 39 ] The Applicants say that the answer to question 7 is relevant to the Constitutional Challenge for the same reasons that the Nova Scotia Court of Appeal found this information to be relevant to the judicial review.

The Applicants say the information called for by this question is also relevant or likely to lead to relevant information with respect to (

a) the circumstances leading up to the enactment of the constitutionally impugned amendments to the legislation; (

b) the Respondents’ motivation for those amendments; (

c) the Respondents’ bad faith in relation to the 2017 Tribunal process; (

d) the need for a binding process in order to ensure an effective and depoliticized process for the determination of judicial compensation; and (

e) the Respondents’ politicization or failure to depoliticize the setting of judicial compensation. [ 40 ] Again, apart from paragraph 6 of the Notice, none of the theories advanced by the Applicants, as reflected in question 7 are plead. Question 7 askes for information about comments that the Premier allegedly made that fits the Applicants’ theory that the Government just went through the motions of the 2017 Tribunal process without meaningful engagement.

That theory is certainly relevant to the judicial review, but based on the Notice filed to commence the Constitutional Challenge, no material facts in support of that theory are plead. [ 41 ] Counsel for the Applicants confirmed to this Court at the hearing of the within motion, that the Applicants take the position that any legislation in Canada which makes the Tribunal process for setting judicial compensation not binding on government, is unconstitutional.

The contents of paragraph 6 of the Notice certainly reflect that position. [ 42 ] I find that the information sought by Interrogatory 7 is not relevant to what is plead in the Notice, and the AGNS need provide no further response to it. Interrogatories 8 – 11: [ 43 ] The Applicants say that Interrogatories 8 – 10 seek relevant information that relates to facts outlined in paragraphs 40 to 42 of the 2017 Burrill Affidavit, which this Court held would augment the record on judicial review. The Interrogatories are repeated here for ease of reference: 8.

On February 9, 2017, did the Premier engaged ( sic ) in a media scrum outside Cabinet (the “Scrum”)? 9. Does the transcript attached as Exhibit 2 fully and accurately set out the statements made by the Premier and the questions asked of him by various reporters in the Scrum? 10. On February 14, 2017 was the Premier interviewed by CTV television reporter Steve Murphy, of CTV News Atlantic (the

“Interview”)? 11. Does the transcript attached as Exhibit 3 fully and accurately set out the statements made by the Premier and the questions asked of him by Mr. Murphy in the Interview? [ 44 ] These questions each seeks information about comments allegedly made by the Premier following the February 2, 2017 release of the Order in Council 2017-24 which rejected the 2017 Tribunal’s salary recommendations for the Judges. This Court held that similar information, contained in the 2017 Burrill Affidavit would augment the record on the judicial review.

The Applicants say that the information sought by Interrogatories 8 – 11 is also relevant to the Constitutional Challenge. The Applicants tie the relevancy of these questions to paragraph 6 of the Notice. [ 45 ] Once again, there is nothing plead in the Notice that raises, as a material fact, anything to do with statements made by the Premier in the aftermath of the release of OIC 2017-24. Further, the Constitutional Challenge claims that the legislation which made the Tribunal process not binding on the government, is unconstitutional and violates the Charter .

There is nothing plead in the Notice that ties comments made by the Premier to the impugned legislation. [ 46 ] As plead, the Constitutional Challenge raises the constitutionality of the changes to the Act . Its focus, as plead, is on the content of the legislation, which makes the Tribunal recommendations not binding on the Government. On the other hand, the focus of the judicial review is on the conduct of the Government and whether it failed in its duties to fully and properly engage in the Tribunal process. [ 47 ] The Notice raises the question of statutory

interpretation of the impugned legislation, i.e., does the fact that the Act no longer makes the Tribunal’s recommendations binding on the Government, make the Tribunal process ineffective or politicized and therefore unconstitutional.

But the pleading does not raise anything concerning what one member of the Executive, the Premier, said or did following the release of the OIC, and how that information would be probative to the question of the alleged unconstitutionality of the impugned legislation. [ 48 ] I find that the Notice does not plead any material facts related to the information sought in Interrogatories 8 – 11. The AGNS need not provide any further answers to these questions. Interrogatories 12 and 13: 12.

On June 7, 2016, did Her Majesty the Queen in Right of the Province of Nova Scotia, as represented by the Public Service Commission, and the Nova Scotia Crown Attorneys Association, enter into the agreement attached as Exhibit 4, which provides for final and binding arbitration in accordance with the terms set out therein? 13.

Was there an Order in Council implementing the recommendation of the Nova Scotia Provincial Judges Salary and Benefits Tribunal Report and Recommendations for the period April 1, 2008 to March 31, 2011? [ 49 ] The Applicants say that the information sought in question 12 is relevant because the agreement between the Government and the Crown Attorneys Association provides for binding arbitration and was executed after the removal of the binding Tribunal process for determination of judicial remuneration. The Applicants say that this information is relevant to (

a) the differential treatment by the Respondents of persons who are paid from the public purse; (

b) the viability of a binding Tribunal process; and (

c) the politicization of judicial compensation, among other matters. [ 50 ] With respect to Interrogatory 12, there is nothing plead in the Notice about the Crown Attorneys’ collective agreement with the Government and why that is relevant to the Constitutional Challenge. [ 51 ] Interrogatory 12 does not seek relevant information. The AGNS need provide no further answer to it. [ 52 ] As to Interrogatory 13, the question seeks information about the 2008 Tribunal process.

The Applicants say that the information is relevant because it will provide information that speaks to the history of the Government’s implantation of Tribunal recommendations respecting judicial remuneration to the then binding Tribunal process. [ 53 ] The Notice does not plead any material fact that makes this information probative to the challenge of the legislation in the Constitutional Challenge. [ 54 ] The AGNS has answered Interrogatory 13. No further answer is required. Conclusion [ 55 ] None of the Interrogatories seek relevant information based on what is plead in the Notice.

The AGNS need provide no further responses to any of these Interrogatories. [ 56 ] The AGNS has been wholly successful on this motion and is entitled to costs. [ 57 ] If the parties cannot agree on costs, this Court will receive written submissions with thirty (30) calendar days of this decision. Smith, J.