Nova Scotia Provincial Judges' Association v. Nova Scotia (Attorney General), 2022 NSSC 93

IN THE SUPREME COURT OF Nova Scotia Citation: Nova Scotia Provincial Judges' Association v. Nova Scotia (Attorney General), 2022 NSSC 93 Date: 20220331 Docket: Hfx No. 461108 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 Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and The Governor in Council Respondents Judge: The Honourable Justice Ann E.

Smith Heard: June 23, 24, 2021, in Halifax, Nova Scotia Final Written Submissions: Applicants: October 12, 2021 Respondents: October 8, 2021 Counsel: Susan Dawes and Kristen Worbanski, for the Applicants Jeffrey Waugh and Kevin Kindred, for the Respondents By the Court: Introduction [ 1 ] On March 7, 2017, the Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges' Association, (the “Applicants” or the “Judges’ Association”) filed a Notice for Judicial Review, requesting judicial review of Order-in-Council 2017-24 (the “OIC”) whereby the Nova Scotia Governor in Council rejected salary recommendations made by the Nova Scotia Provincial Judges’ Salaries and Benefits Tribunal (the “Tribunal”). [ 2 ] The Tribunal is an independent tri-partite tribunal appointed every three years whose task is to recommend the salaries and benefits for Judges of the Provincial Court and Family Court, including the Chief Judge and Associate Chief Judge of each Court (the “Judges”), in accordance with the process described in the Provincial Court Act , RSNS 1989, c. 238 , as amended, 2016, c.2, ss. 8-14 . [ 3 ] On November 18, 2016, the Tribunal completed its report (the “Tribunal Report”) regarding salary and benefits for the Judges for the period April 1, 2017, to March 31, 2020. [ 4 ] On February 2, 2017, the Governor in Council produced the OIC which confirmed four of the five recommendations of the Tribunal but varied one recommendation. [ 5 ] Specifically, the Governor in Council varied the Tribunal’s recommendation that the Judges’ salaries be increased by approximately 9.5% over three years, (including a 5.45% increase in the first year), to an increase of 1% for fiscal year 2019 to 2020.

The OIC states, in part: In the circumstances, an appropriate increase is 1% for the 2019-20 fiscal year to approximate the salary adjustments already set for Crown Attorneys, the funding increase for physicians, and the proposed increases of other Nova Scotians receiving salaries out of public funds, including members of the Legislative Assembly, all of whom have had or will have a salary freeze for two years. [ 6 ] The Notice for Judicial Review sets out the following grounds for review:

The Respondents have violated the constitutional principles of judicial independence as articulated in the common law and entrenched in

section 11(

d) of the Canadian Charter of Rights and Freedoms and the

preamble and sections 96 , 100 and 129 of the Constitution Act , 1867 , in that the Governor in Council has: (

a) failed to articulate a legitimate reason for departing from the Tribunal’s salary recommendations; (

b) failed to rely upon a reasonable factual foundation in its reasons for rejection; and (

c) viewed globally, failed to respect the Tribunal process and ensure that the purposes of the Tribunal – preserving judicial independence and depoliticizing the setting of judicial remuneration – have been achieved. [ 7 ] In particular, the Applicants’ plead that the Respondents have: (

a) failed to engage fully in the Tribunal process in a manner that ensures its effectiveness; (

b) failed to give constitutionally adequate and legitimate reasons for rejecting the salary recommendations of the Tribunal including, without limiting the generality of the foregoing: (

i) failing to respond to specific reasons and articulations of the Tribunal and failing to deal with the Tribunal’s reasoning and recommendations in a meaningful way; (ii) mischaracterizing the reasoning and/or intent of the Tribunal and its salary recommendations; (iii) basing its decision concerning the Tribunal’s salary recommendations on erroneous or unsupported statements of fact; (iv) basing its decision concerning the Tribunal’s recommendations on alleged facts, reasons or arguments not advanced before the Tribunal that the Province had reasonable opportunity and a responsibility to raise at the hearings before the Tribunal; (

v) reiterating submissions made to and substantively addressed by the Tribunal; (vi) making unjustified assumptions and/or assertions in its reasons; (vii) re-weighing factors considered by the Tribunal without justifying the difference in weight; (viii) mischaracterizing or misapprehending the jurisdiction or mandate of the Tribunal and the purpose of the Tribunal process; (ix) advancing reasons that are not compatible with the common law and the Constitution in that they are inconsistent with the role and purpose of the Tribunal process and the role of the executive and/or legislative branches of Government in that process; (

x) offering reasons which treat judges as civil servants, contrary to relevant constitutional principles and/or which are designed to protect the position of the Government in its bargaining with civil servants rather than address the merits of the recommendations for judges; (

c) failed to respect the Tribunal process such that its purposes have not been achieved. Such errors by the Respondents include, but are not limited to: (

i) misconstruing the role, jurisdiction, and mandate of the Tribunal and failing to participate in the process with the requisite good faith and respect for the process; (ii) rendering the process meaningless by its position that the Tribunal was effectively bound to adhere to the Government’s fiscal plan; (iii) acting on the basis of political considerations, in order to bolster the Government’s position in ongoing public

section bargaining; and; (iv) imposing a greater burden on the judiciary than on civil servants. Background Information [ 8 ] Prior to 2016, recommendations made by a Nova Scotia salary and benefits tribunal concerning judicial compensation were binding upon Government. In September 2013 a Salary and Benefits Tribunal was established to make recommendations for the period April 1, 2014, to March 31, 2017 (the “2014 Tribunal”). On September 23, 2014, the 2014 Tribunal delivered its report and binding recommendations.

The Tribunal recommended an annual salary of $231,500 effective April 1, 2014 (up from $222,993), followed by further salary increases in the years 2015-2016 and 2016 and 2017 based on the percentage increase, if any, in the Consumer Price Index for the previous calendar year. The recommendations of the 2014 Tribunal were implemented by the government by Order in Council signed on December 17, 2015. [ 9 ] On December 14, 2015, three days before the 2014 Tribunal recommendations were implemented, the government introduced Bill 148, The Public Services Sustainability

(2015) Act (the “ PSSA ”) which imposed a set wage package for public sector employees of 0%, 0%, 1%, 1.5% and .5%. The Bill received Royal Assent on December 18, 2015, and was proclaimed on August 22, 2017. [ 10 ] The evidence before the Court disclosed that on December 14, 2015, the then Premier of Nova Scotia, the Honourable Stephen McNeil, made statements in an interview aired on the CTV News Atlantic evening news broadcast to the effect that he had no choice but

to implement the 2014 Tribunal recommendations, but that he would be considering changing the binding nature of the Tribunal process. [ 11 ] In January 2016 the 2017 Tribunal was established. On May 3, 2016, the Finance Minister introduced Bill 174, The Financial Measures

(2016) Act which had the effect of amending the Provincial Court Act to remove the binding nature of the Tribunal process. [ 12 ] A copy of the speaking notes of the Honourable Randy Delorey, then Minister of Finance and Treasury Board when Bill 174 was tabled, were in evidence before this Court. The speaking notes record, in part: The Financial Measures

(2016) Act includes amendments to the Provincial Court Act to ensure that the compensation for judges is affordable for Nova Scotians. Every jurisdiction in Canada has provisions to establish a tribunal to consider compensation for judges. Nova Scotia, however, is one of only two jurisdictions were recommendations for salary and benefits are fully binding on the government. This is not reasonable. Our judges do challenging and extraordinary work every day.

Nova Scotians value their roles and their commitment; but it is equally important that government maintain control over public finances, especially in challenging economic times. [ 13 ] Bill 174 was passed on May 20, 2016. As a result, the Provincial Court Act provided that the Governor in Council could vary or reject the Tribunal’s recommendations. [ 14 ] The Tribunal received extensive written submissions from the parties. The Tribunal held a hearing on July 28, 2016, where witnesses were called, including Mr.

Ingram, the Director of Policy and Fiscal Planning for the Department of Finance and Treasury Board. [ 15 ] The Tribunal’s Report was issued on November 18, 2016. [ 16 ] The Tribunal Report was considered by the Governor-in-Council in February of 2017. Approximately a month before that, the Attorney General provided a Report and Recommendation (the “R & R”) to the Executive in Council concerning the Tribunal Report. The R & R was not included in the Record produced by the Government for this review. The Applicants brought a motion for its disclosure.

Ultimately the Supreme Court of Canada ordered that two components of the R & R be included in the Record, a

section entitled, “Government-wide implications” and a “Communications Plan”. [ 17 ] The OIC was produced by the Governor in Council on February 2, 2017. As noted above, the Governor in Council substantially varied the Tribunal’s salary recommendation. The Evidence before the Court [ 18 ] The evidence before the Court consists of the Affidavit of the Honourable Judge Burrill sworn March 23, 2018 (the “Burrill Affidavit”) and the Supplemental Affidavit of Judge Burrill sworn December 23, 2020 (the “Supplemental Burrill Affidavit)”. Judge Burrill was not cross-examined on his Affidavits.

The Record and the Decision of the Supreme Court of Canada [ 19 ] As noted above, the production of the R & R was the subject of a ruling by the Supreme Court of Canada in 2020. The initial Record filed by the Respondents consisted of the Tribunal Report and the OIC. The OIC referenced the R & R, but it was not included as part of the Record. [ 20 ] In a decision reported at 2018 NSSC 13 ( Nova Scotia Provincial Judges’ Association v. Nova Scotia (Attorney General) this Court allowed, in part, a motion brought by the Judges’ Association for disclosure of the R & R.

The Judges’ Association sought a declaration that the R & R be part of the record on judicial review under Civil Procedure Rule 7.10(a). This Court found that portions of the R & R were protected from disclosure by solicitor-client privilege and that public interest immunity did not prevent disclosure of the rest of the R & R. In particular, this Court ruled that a “Communications Plan” which was an appendix to the R & R should be disclosed. That decision was appealed by the Respondents.

The Court of Appeal upheld those portions of this Court’s decision dealing with the inclusion of the R & R as part of the Record in a decision reported at 2018 NSCA 83 ( Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia) . The Court of Appeal’s decision was appealed to the Supreme Court of Canada. [ 21 ] The Supreme Court’s decision in that appeal ( Nova Scotia (Attorney General) v. Judges of the Provincial and Family Court of Nova Scotia , 2020 SCC 21 ( NSPCJA ) along with its decision in a companion appeal, British Columbia (Attorney General) v.

Provincial Court Judges’ Association of British Columbia , 2020 SCC 20 ( BCPCJA ) set out a framework for judicial inspection of a Cabinet document sought to be disclosed pursuant to Bodner v. Alberta , 2005 SCC 44 (SCC) (“ Bodner ”).

As is discussed later in this decision, a Bodner review is a limited form of judicial review of a government’s response to a judicial compensation commission’s recommendation. [ 22 ] In BCPJA , Karakatsanis J., writing for a unanimous Court stated: [5] In its judicial independence case law, this Court has consistently sought to strike a balance between several competing constitutional considerations by establishing a unique process for setting judicial remuneration, backed up by a focused, yet robust form of judicial review described in Bodner (cite omitted by this Court).

In resolving this appeal, the rules of evidence and production must be applied in a manner that reflects the unique features of the limited review described in Bodner , and respects both judicial independence and the confidentiality of Cabinet decision making.

[6] For the reasons that follow, where a party seeking Bodner review requests that the government produce a document relatingto Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends toshow that the government failed to meet one of the requirements described in Bodner. Only then would the government be required toproduce that document for judicial inspection.

If the document does in fact provide some evidence which tends to show that thegovernment’s response does not comply with the constitutional requirements, the court can then determine whether its production isbarred by public interest immunity or another rule of evidence invoked by the government. [7] Public interest immunity requires a careful balancing between the competing public interest in confidentiality and disclosure.

Since there will be a strong public interest in keeping a document concerning Cabinet deliberations confidential, it must be outweighedby a still stronger public interest to warrant the document’s disclosure. In the Bodner context, the strength of the public interest indisclosure will often be dependent on the importance of the document to determining the issues before the court in the Bodner review. [23] In BCPCJA, the Supreme Court held that the Judges’ Association did not meet the threshold necessary to compel production ofa Cabinet document for judicial inspection.

The Association did not provide any evidence or point to any circumstances that suggestedthat the Cabinet submission at issue indicated that the government did not meet the standard required by Bodner. [24] However, in NSPCJA, the Supreme Court held that, after applying the BCPCJA framework, the Judge’s Association had metthe threshold to compel production of portions of the R & R. [25] Writing for a unanimous Court, Karakatsanis J. stated: [5] Applying that framework in this appeal, I conclude that there is some basis to believe that the Attorney General’s report maycontain evidence which tends to show that the government failed to meet a requirement of the Bodner test.

The public reasons given forthe government’s decision to depart from the commission’s recommended increase in judicial remuneration provide some basis tobelieve that the government may have relied on improper considerations and may not have respectfully engaged with the commissionprocess. [6] Having inspected the Attorney General’s report, I find that only two components, the discussion of government-wideimplications and the communications plan, provide some evidence that the government may have failed to meet the Bodner test.

Therest of the report is either protected by solicitor-client privilege or provides not such evidence, and will not form part of the record. [7] Since the discussion of government-wide implications and the communications plan reflect matters that may have beenconsidered by Cabinet, I turn finally to public interest immunity, and find that the public interest in these parts of the Attorney General’sreport remaining confidential is outweighed in favour of these parts’ continued confidentiality, they are outweighed by their importanceto the court’s determination of the merits of the application for Bodner review. [8] As a result, only components of the Attorney General’s report – the discussion of government-wide implications and thecommunications plan – should be produced as part of the evidence on Bodner review.

That said, these excerpts are merely someevidence for the Supreme Court of Nova Scotia to consider in deciding the merits of the judicial review of the government’s response. [Emphasis added] [26] Karakatsanis J. noted (para. 36) that the Judges’ Association in the within case plead that the government’s reasons failed toexplain the choice to depart significantly from the Tribunal’s recommendation of an 8.9 percent increase in judicial salary over threeyears, which aimed to bring judges’ salaries more in line with salaries in other provinces and that the government’s reasons do not justifyits decision to limit the increase to one percent in the last year of the triennial cycle.

Also noted by Karakatsanis J. (para. 37) was that thegovernment’s reasons: …repeatedly criticize the commission process and the recommendations in strong terms. The reasons contend that the commissionproceeded in a “results-oriented and formulaic manner to achieve an outcome”, adding that there was “no rational basis for itsconclusion” (citation omitted).

The reasons also criticize the commission’s reliance on an “adversarial interest arbitration” model drawnbased on collective bargaining, warning that, “as a consequence”, “public confidence in the actual and apparent independence, objectivityand effectiveness [of the commission] could be called into question”. [27] After stating that the issue of whether the Government’s reasons, in the broader context of this case, supplied some basis tobelieve that the R & R may contain evidence that tends to show that the Government failed to comply with one of its constitutionalrequirements in responding to the commission’s recommendations, Karakatsanis J. stated (para 41): It is open to the respondents to rely on the government’s reasons to argue that the government did not take sufficient account of thedistinctive nature of judicial office in concluding that judicial salaries should increase only in line with the rest of the public sector.

While across-the-board restraints on increases in salaries could be found to be rational, this Court has cautioned that “judicialindependence can be threatened by measures which treat judges…identically to other persons paid from the public purse”: Reference reRemuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, at paras. 158 and184.

Similarly, although this Court accepted in Bodner that comparisons with the salaries of civil servants could be appropriate, thisCourt also warned that the government’s response must always take into account the distinctive nature of judicial office: Bodner, atparas. 26, 75 and 123-26. [Emphasis that of Karakatsanis, J] [28] In determining that the R & R does in fact provide some evidence which tends to show that the government’s response does notcomply with the requirements set out in Bodner, Karakatsanis J. referred to the “government-wide implications”

section of the R & Rwhere it is acknowledged that the Tribunal’s role is unique owing to judicial independence but adds that “any salary increase provided toany group may have impacts on current labour negotiations for Government”.

[29] Karakatsanis J also referred to the content of the Communications Plan: [51] ….The communications plan does not provide any advice or recommendations, but rather identifies the “communicationschallenges” that would result from accepting, rejecting or varying the commission’s recommendations. It was put before Cabinet for itsconsideration in determining the government’s response to the commission’s recommendations.

The communications plan sets out thebases on which the decision to accept or vary the commission’s recommendations could be criticized, as well as related politicalconsiderations. [52] If the government were to accept the recommendations, the communications plan warns that the salary increase may not beacceptable to the public. The plan cautions that if the government accepts the recommendations, the public may question why thegovernment amended the legislation to make the commission’s recommendations non-binding, if the government is not prepared todepart from them.

Finally, the plan suggests that public sector unions may use the salary increase to “bolster [their] case for higherwages” because the recommended increase is higher than that for public sector employees more generally. [53] The communications plan warns that if the government rejects or varies the recommendations, as it ultimately did, the Judgesof the Provincial Court and Family Court will likely apply for judicial review.

The plan explains that even so, the public will likely seethe government as “firm and consistent on finances and wages for individuals supported by taxpayers” and that public sector unions willnot be able to use the salary increase in support of their case for higher wages. [30] Karakatsanis J further explained why she concluded that the communications plan and the “government-wide implications”section of the R & R provided some basis to support the Judges’ Association’s contention that the government’s response to theTribunal’s recommendations fell short of its constitutional requirements as follows: [54] …In particular, the suggestion that if the government accepts the commission’s recommendations, it will be criticized for notavailing itself of the option given to it by the Nova Scotia legislature to vary or reject the commission’s recommendations, is hardly arational basis for departing from those circumstances.

It would undermine the legitimacy of the government’s response if Cabinet reliedon those considerations. Whether it did so will be a matter for the Supreme Court of Nova Scotia to decide on the merits. [Emphasis added] [31] Karakatsanis J. cautioned that the government is owed due deference by a reviewing Court owing to its “unique position andaccumulated expertise and its constitutional responsibility for management of the province’s financial affairs”, quoting from Bodner(para. 30).

However, she added this caveat: [56] But it is far from clear that the government can depart from the commission’s recommendations simply because it fears thataccepting them would have a detrimental impact on public sector labour negotiations. In Bodner, at para. 160, this Court described theQuebec government’s response to a similar commission’s recommendations in these terms: After the [commission] submitted its report, the [g]overnment’s perspective and focus remained the same.

Its position is tainted by arefusal to consider the issues relating to judicial compensation on their merits and a desire to keep them within the general parameters ofits public sector labour relations policy.

The [g]overnment did not seek to consider what should be the appropriate level of compensationfor judges, as its primary concerns were to avoid raising expectations in other parts of the public sector and to safeguard the traditionalstructure of its pay scales. [Emphasis added] [32] Karakatsanis J concluded that public interest immunity did not bar the production of the government-wide implications andcommunications plan as part of the Record. After stating that several of the factors identified in Carey v.

Ontario, (SCC),[1986] 2 S.C.R. 637 weighed in favour of those parts of remaining confidential, she concluded that “the exclusion of these components ofthe Attorney General’s report from the record would impact the reviewing court’s ability to determine the merits of the Bodner review”.(para. 69). The “Government-Wide Implications”

Section of the R & R [33] The “Government-Wide Implications

section of the R & R is brief. It reads as follows: The nature of the Tribunal’s decision is unique because of the independence of the judiciary as (sic) separate branch of government. However, any salary increases provided to any group may have impacts on current labour negotiations for Government. [Emphasis added] The “Communications Plan”

Section of the R & R [34] The “Communications Plan” is a three and one-half page document prepared by the Government’s Communication Director. Itis dated December 12, 2016. This Plan provides, in part, as follows: Narrative: Judges do challenging and important work every day. They get paid well to do a difficult job. The Supreme Court ofCanada has been clear that judicial salaries are not to be tied to other public service salaries and Nova Scotia judges are among thelowest paid in the country. That’s why the tribunal recommended a wage increase.

Background/Context: Executive Council is being asked to either accept, vary or reject the recommendations of the Provincial CourtJudges Salaries and Benefits Tribunal. It is an independent tribunal. The Tribunal recommends a salary increase of 5.5 percent in thefirst year, followed by increases in the second and third year tied to CPI. The raises, if accepted, would take effect on April 1, 2017 andrun through to March 31, 2020.

The Tribunal has set a provincial judge’s 2017-18 base salary at $249,021. There are also improvements to pension and health benefits. The proposed raise recommended by the Tribunal exceeds the public-sector wage settlement plan. There will be a communications challenge if the Governor in Council accepts the recommendation because it exceeds the wage pattern for public sector employees set out by government. [ 35 ] A

section of the Communications Plan sets out “Stakeholder/Key Audience Analysis”. The “public reaction” stakeholder analysis to accepting the Tribunal’s salary recommendation is noted to be “neutral to positive”. The following analysis is provided: An increase may meet with criticism. Raises will be seen as a large increase by many in the workforce who are not getting raises or do not have pensions. If government accepts the Tribunal’s recommendations, members of the public may wonder why government enacted legislation to control salary increases for judges in the first place.

The public will also question why judges would get a raise if government isn’t prepared to negotiate higher salaries with teachers and civil servants. … Rejecting or varying the recommendation would be viewed as government being firm and consistent on finances and wages for individuals supported by taxpayers. [ 36 ] The Communication Plans states that the reaction of court workers and other civil servants to the Tribunal Recommendations would be “negative, if Tribunal recommendations are accepted” and “positive, if government varies the recommendation to be in line with public sector wage pattern”.

The analysis in support of this stakeholder/key audience analysis is as follows: Although judges are distinct from other civil servants, their salaries are paid by the taxpayer. Other court workers, who work closely with judges, will not see a raise or a raise that is lower than the judiciary.

The proposed raise for judges exceeds provincial wage settlements or public sector wage settlements . [Emphasis added] [ 37 ] The possible effect on public sector unions is noted in the Communications Plan to be positive, if the Tribunal recommendations are accepted, but negative or neutral if “government varies the recommendation to be in line with public sector wage pattern”. The analysis provided reads as follows: Public sector unions are being asked to accept no increase for the first two years of a four year contract, followed by two years with minimal increase below the cost of living.

Government is already involved in challenging labour negotiations with teachers and civil servants and has been clear that the pattern for wage settlements needs to change. The union may use this tribunal decision to bolster its case for higher wages.

If government varies the recommendation to bring it in line with the public sector wage pattern, unions won’t be able use it ( sic ) an argument for higher settlement. [Emphasis added] [ 38 ] Under the heading “Key Messages”, the Communications reports sets out “key messages” if the Tribunal’s recommendations are rejected, varied or accepted: Key Messages: Recommendation rejected or varied: • Judges deserve to be paid well, but the salary increases recommended by the tribunal are simply unaffordable. • We respect the independence of the judiciary, but every Nova Scotian receiving a salary paid from the public purse is being asked to accept less.

We all have a part to play. • Judges do challenging and extraordinary work every day. And they are paid well. They themselves acknowledged to the Tribunal that they were among the 1 per cent of top salary earners in our province. Recommendations Accepted: • Judges do challenging and important work every day and they are well paid. The Supreme Court of Canada has set the bar high for judicial compensation.

They’ve said judges’ salaries can’t be tied to other public sector salaries. • Government put a strong case forward to the tribunal about what it can afford; but at the end of the day salaries for Nova Scotia judges are still well below the national average. This is part of what the independent Tribunal considered when making its decision.

• Ultimately, we’d like to set a salary that is affordable and in line with the rest of the public sector, but even with the legislation we put in place, not accepting the tribunal’s recommendations will likely be challenged in court at a significant cost to taxpayers. [ 39 ] Under the heading “Issues” “salary increase in a time of restraint”, “ongoing labour negotiations” and “ignoring the government’s own legislation” are addressed and the following stated: Salary increase in a time of restraint : In a time of restraint, many Nova Scotians will be critical of significant salary increases for judges.

The raise to judges exceeds provincial wage settlement or public sector wage settlements. In the public hearing, the judiciary itself acknowledged their members were among the top one per cent of salary earners in the province. Ongoing labour negotiations : Eyes will be on this decision, given that the province is in the middle of labour negotiations with teachers and civil servants. Much of the focus is on government holding to its wage pattern.

Ignoring the government’s own legislation : This spring, the government passed legislation giving itself authority to accept, vary or reject the recommendations of the Tribunal. This was done because the Tribunal’s recommendations were binding on government and the province felt it needed authority to manage finances in a time of restraint. There was also an issue of accountability. The last Tribunal recommended a 3.8 per cent raise, plus CPI for each of the next two years.

The government will be open for criticism for enacting legislation to improve its accountability and then refusing to act on its new authority. [ 40 ] The Communications Plan also contains a heading “Links to Government Priorities, Departments and/or Agencies”. Under this heading, the following is stated: Links to Government Priorities, Departments, and/or Agencies : Government is very focused on fiscal responsibility and sustainability. A wage pattern that Nova Scotians can afford is a key part of this and government is in negotiations with teachers and civil servants.

The Public Service Commission and negotiations with these groups will be impacted by this decision.

The Burrill Affidavit – Evidence Before the Court [ 41 ] In his Affidavit, sworn March 23, 2018, the Honourable Judge James Burrill, a judge of the Provincial Court of Nova Scotia since his appointment in 2003, said as follows: On February 9, 2017, I listened to a radio broadcast on CBC Radio of a media scrum outside of Cabinet and heard the Premier state that the Tribunal’s salary recommendation was rejected because the Tribunal had not looked at the totality of judges’ compensation, but only at salary. [ 42 ] Judge Burrill goes on to state in his Affidavit that he obtained a copy of an audio recording of the February 9, 2017, media scrum from the Court’s Communications Director which was provided to her by a reporter with CBC Nova Scotia.

Judge Burrill states that he reviewed a copy of a transcript of the media scrum in question and believes it to accurately reflect the recorded exchange and the statements of the Premier. Counsel for the Respondents did not dispute the accuracy of the transcript. The transcript includes the following exchanges between the Premier and reporters: Jean Laroche (CBC) – On the judges’ pay, normally that’s an independent process. But you’ve, I guess, trumped whatever they wanted. Why? Premier – They looked at one aspect of compensation with salaries.

When you look at the entire compensation package for the Judiciary in our province, they are treated fairly. That compensation should reflect the province’s ability to pay and it should be in line with every other Nova Scotian when it comes to what they can expect for increases. Jean – But our judges are among the lowest paid in the country? Premier – When you look at salary. But when you look at other compensation packages, that is not the case. You would also look at cost of living in other Canadian cities and it’s not the same as it is there.

So, if they want to go down, you know, when you look at it as totality of the compensation package, they’re being treated fairly. Brian Flinn (AIINS) – Should judges lose their public service award? Premier – They’re being treated fairly. As we go through this process, as you know, when we came in, it was all being done at arms- length from government, they weren’t being compensated the same as every other jurisdiction. We’re not looking at the totality of their investment, they strictly just looked at salary.

I believe all of that should be part of that conversation, absolutely. [ 43 ] The transcript also contains the following response of the Premier when asked about the Government’s “labour file” and its use by justice department lawyers and possible advice from outside government: Premier - I’ve used, when I look at all of these files, it’s not unique to any one particular file. When I look at the labour file, I don’t look at one specifically, we’ve looked at the totality of the labour file.

I haven’t treated judges any differently than I’ve treated doctors, and I haven’t treated doctors any differently than I’m treating teachers, and I haven’t treated teachers any differently than I’m treating health- care workers. Brian Flynn - Right, but because there is a tribunal, you would have to look specifically how to proceed with dealing with the tribunal, I would guess? So specific advice on.. Premier – The tribunal, we dealt with the tribunal issue, it was binding when we came into power. We made recommendations to say it

was not binding and we’ve moved forward on our recommendation, on our decision. [Emphasis added] Issues [ 44 ] The Court identifies the issues for determination as follows: 1. What is the legal test to be applied in reviewing the Government’s response to the recommendations of the Tribunal? 2. In applying the legal test: (

a) Has the Government provided a constitutionally adequate and legitimate reason for varying the Tribunal’s recommendations? (

b) Do the Government’s reasons rely on a reasonable factual foundation for varying the Tribunal’s salary recommendation? (

c) Viewed globally, has the Tribunal process been respected and have the purposes of the Tribunal – preserving judicial independence and depoliticizing the setting of judicial remuneration – been achieved? 3.

In the event that this Court finds that any of the three issues above is answered in the negative, what remedy should the Court grant? [ 45 ] Before discussing each issue, the Court will review the mandate of the Tribunal, including the statutory factors it must consider when making a recommendation for judicial compensation, the submissions it received from the parties, its report and the Government’s reasons for rejecting the Tribunal’s salary recommendation.

The Mandate of the Tribunal [ 46 ] The relevant provisions of the Provincial Court Act which delineate the duties and mandate of the Tribunal as well as the factors the Tribunal must consider in making recommendations about judicial remuneration are as follows: Duties of tribunal 21E

(1) A tribunal shall inquire into and prepare a report containing recommendations with respect to (

a) the appropriate level of salaries to be paid to judges of the Provincial Court and the Family Court, including the chief judge and associate chief judge of each court; (

b) the appropriate level of per diem payments, or payments for part of a day, made to judges for presiding in the Provincial Court or the Family Court where those judges are not receiving salaries; (

c) the appropriate vacation and sick-leave benefits to be provided to judges of the Provincial Court and the Family Court; (

d) pension benefits and increases thereto in respect of increases in the cost of living, long-term disability benefits or salary continuation, life insurance and health and dental benefits for judges of the Provincial Court and the Family Court and the respective contributions of the Province and the judges for such benefits; and (

e) other non-discretionary benefits for judges of the Provincial Court and the Family Court.

(2) Where there is a dispute as to whether a benefit referred to in clause (

e) of subsection (1) is a non-discretionary benefit, the Minister or the Association may, within thirty days of receipt of the report, appeal to the Nova Scotia Court of Appeal to have the question determined.

(3) When making recommendations pursuant to this Section, a tribunal shall take into consideration the following: (

a) the constitutional law of Canada; (

b) the need to maintain the independence of the judiciary; (

c) the need to attract excellent candidates for appointment as judges; (

d) the unique nature of the judges’ role; (

e) the manner in which salaries and benefits paid to judges in the Province compares to judicial compensation packages in other jurisdictions in Canada, including the federal jurisdiction, having regard to the differences between those jurisdictions; (

f) the provision of fair and reasonable compensation for judges in light of prevailing economic conditions in the Province and the overall state of the Provincial economy; (

g) the adequacy of judges’ salaries having regard to the cost of living and the growth or decline in real per capita income in the Province; (

h) the relevant submissions made to the tribunal; (

i) the nature of the jurisdiction and responsibility of the court; and

(

j) other such factors as the tribunal considers relevant to the matters in issue. [ 47 ] The Act requires that the Tribunal report be forwarded to the Governor in Council, and dealt with as follows: Duties of Governor in Council 21K

(1) Within forty-five days of receipt of the report prepared by a tribunal pursuant to subsection (1) of

Section 21E, the Minister shall forward the report to the Governor in Council.

(2) The Governor in Council shall, without delay, confirm, vary or reject each of the recommendations contained in the report referred to in subsection (1).

(3) Upon varying or rejecting the tribunal’s recommendations in accordance with subsection (2), the Governor in Council shall provide reasons for so doing to both the tribunal and the Association.

(4) The Governor in Council shall, without delay, cause the confirmed and varied recommendations to be implemented, and the recommendations have the same force and effect as if enacted by the Legislature once implemented and are in substitution of any existing legislation relating to those matters. 2016, c. 2, s. 9 . The Submissions of the Judges’ Association to the Tribunal [ 48 ] The Judge’s Association provided lengthy (65 page) submissions to the Tribunal. The Association provided the Tribunal with its analysis of the application of each

Section 21E(3) factor. The

Summary of its submission to the Tribunal reads as follows: Consistent with the Association’s position before past tribunals, it is not advocating a specific salary amount. Instead, the Association has provided submissions with respect to each of the factors this Tribunal is required to consider pursuant to

Section 21E(3) of the PCA ( Provincial Court Act ). It is the Association’s position that a consideration of those factors lead to the inevitable conclusion that the judges of Nova Scotia’s Provincial and Family Courts should receive an increase to their existing salaries.

Without limiting the foregoing, important factors in favour of the Association’s position are: (1) that Nova Scotia’s provincial judges are constitutional ( sic ) barred from negotiating their salaries; (2) that Nova Scotia’s provincial judges are statutorily barred from earning income from endeavours outside their office; (3) the need to attract excellent candidates when provincial judges make almost $80,000.00 less than federally appointed judges; and (4) that Nova Scotia’s provincial judges are next to the lowest paid provincial judges in the country and their salary for 2015 – 2016 is $21,829 below the national average.

Given the Province’s current financial stability coupled with indicators of strong future economic performance, there are no compelling reasons that Nova Scotia’s provincial judges should be amongst the lowest paid provincial judges in Canada. It is respectfully submitted that this Tribunal should set the provincial judges’ salaries at a level that will meaningfully recognize the above-noted factors. The Minister’s Submissions to the Tribunal [ 49 ] The Minister of Justice provided lengthy (34 page) submissions to the Tribunal on behalf of the Government, which included the Minister’s review of each

Section 21E(3) factor. The bottom line of the Minister’s position with respect to judicial salaries was that a consideration of the

Section 21E(3) factors supported an award consistent with the government’s public service wage mandate. [ 50 ] The Minister’s conclusion to the government’s submissions, state in part, as follows: The Minister specifically acknowledges that the Tribunal is not bound by the fiscal plan of the government. It is of course the case that the wage mandate of the government, and the zero percent increases to be levied on most of the public service, is not of particular concern to the Tribunal in and of itself. Neither the fiscal plan nor the wage mandate even carry the status of a relevant factor under the statute.

The Minister appreciates that the constitutional obligations to maintain judicial independence remain at all times paramount for the Tribunal. Nonetheless, the Tribunal is to give full consideration to all of the relevant information and arrive at a principled determination of the salary appropriate to Provincial and Family Court Judges for 2017 – 2020.

In so doing, the Tribunal cannot ignore the reality of the restraints placed on others in the community served by the Judges, as an indicator of the economic circumstances of the province, as the foundation to the relatively positive fiscal forecast, and as a reflection of the high pedestal upon which Judges presently sit. …. The consideration of the constitutional and legislative factors by this Tribunal ensures an independent process which provides crucial support for the independence of our judiciary. The executive cannot and will not summarily dismiss the recommendations made by this Tribunal.

Those recommendations will not be taken lightly, rather the statements and considerations of this Tribunal will be given the serious consideration they are due, aware that this is necessary to support judicial independence. At the end of the day, it is the government who is responsible as stated under the Finance Act for prudent fiscal management taking into consideration the impact on Nova Scotia both now and in future years. The recent amendments to the Provincial Court Act reflect that it is the government who has the responsibility

for all expenditures from the public purse, including the payment of judicial salaries. In accordance with the requirements of the Finance Act , the decision as to the salaries of the provincial and family court judges will be made transparently to the public, and the government is responsible for the decision. The Minister has reviewed the factors of

Section 21E(3) and the information available to assess the judicial compensation package against the necessary financial security of the judges. It is the Minister’s position that while the current salary and benefits arguably satisfy the requirements of judicial independence, an award consistent with the public service wage mandate would be appropriate in all of the circumstances.

The Submissions of the Judges’ Association in Reply [ 51 ] In its reply submissions to the Government’s submissions, the Judges Association provided the following overview of its response: Overview The purpose of the JCC process, as observed by Chief Justice Lamer in Bodner , is to “depoliticize” the relationship between the government and the judiciary by changing the process for determining judicial remuneration.

While the Province’s Submission of June 30, 2016, to coin a term, is “talking the talk” by remarking on the Province’s engagement and respect for the JCC process, by any substantive measure the Province is not “walking the walk”. Considered at its core, the Province’s position before this Tribunal is aimed at carrying out the Province’s political agenda to limit public sector wage settlements.

Repeatedly, the Province’s submission emphasizes its responsibility for the expenditure of public funds and asserts that, in order to maintain the upward trend of the Nova Scotian economy, fiscal restraint of judicial salaries is necessary to ensure the continued improvement. The Province argues that Nova Scotia provincial judges already earn high incomes and that, in the interest of equity, the judges must be subjected to the same fiscal restraints in determining their financial compensation as it says it intends to apply to the entire public sector.

The Government’s mandate is framed as doing equity by treating all public sector “employees” in a like manner. In the Association’s view, the Province’s position is fundamentally flawed for three reasons which are as follows: (

a) The Province’s approach fails to meaningfully examine whether the Nova Scotia provincial judges’ salaries are fair and reasonable, as required by the PCA. (

b) The Province’s approach attempts to insert a political mandate into what should be a non-political process and is not doing equity by treating all parties equally. (

c) The Province’s Submissions does not give due consideration to the state of Nova Scotia’s economy. [ 52 ] The Minister also provided further Reply Submissions. In the conclusion to these reply submissions, the Minister states, in part: The Tribunal exists as a substitute for collective bargaining or other forms of bargaining but is not to become tantamount to interest arbitration. The intent is to depoliticize the process, not to create a new forum for adversarial wrangling. The process is not for the benefit of the judges nor does it guarantee high salaries or uniformity among judges.

The process is not based on historical precedent nor further guestimates. Comparisons to other judicial salaries must take into account the basis for those salaries and the application of any differences. Equity among judges is not the purpose nor goal of the process. Judicial independence should be measured within the community served and comparisons to other jurisdictions do little to evaluate the public perception of the people actually served by the Provincial and Family Courts of Nova Scotia. Judges are not civil servants.

However, within Nova Scotia, public servants represent a substantial proportion of the working public. Information on wage earners in the Province is relevant to the determination of the Tribunal, pertinent to the constitutional law, maintaining the independence of the judiciary, reflective of the unique nature of the position and as a measure of the economy.

As employer of civil servants and pay master to public servants, the government will continue to provide relevant information without attempting to equate judges to non-judges. … Having considered the factors on their merits, the Minister is left with no discernible objective rationale, from a principled foundation, for a salary increase. Furthermore, as the Association notes at paragraph 15, there is no “magic number” to guarantee judicial independence. The reality is that a salary figure cannot be precisely determined from the myriad factors and the information pertinent to those factors.

Accordingly, the Minister is attempting to find the fair and reasonable balance. The Minister does not agree with the Association submissions that fairness, or equity, is to be assessed solely in relation to other judges. In keeping with the wage mandate applicable to thousands of other Nova Scotia citizens, the proposed 1% increase, effective April 1, 2019, is put forward as an equitable outcome more in keeping with the constitutional law. This is not based on any concept of “comparators” as one would typically use the term in compensation determinations and negotiations.

Rather, it remains an equitable standard applicable in the current circumstances given the population served. The Minister also strenuously reminds the Tribunal that reliance on bare salary figures from other jurisdictions and any kind of averaging approach does not respect the purpose of the process nor the statutory direction of the Act . The “magic number” will not appear based on a national average, a Maritime average, an Atlantic average, or any other approach which amounts to tossing numbers into the blender.

The Tribunal Report [ 53 ] The Record before this Court includes the Tribunal’s Report. The Report starts with an introduction as to the Tribunal’s general mandate, a review of the written and oral submissions it received and the identification of the counsel who represented the Judges’ Association and the Government. The Tribunal notes that although the Judges’ Association and the Government were in general agreement with respect to the way pension and benefits should be addressed, they were “far apart on the salaries question”.

The Tribunal then turned to a review of its statutory mandate and the statutory factors it must review in coming to its recommendations on judicial remuneration, as set out in

Section 21E(3). [ 54 ] The Tribunal noted that the

Section 21E(3) factors provided a “plethora of detail” in aiding it and the parties to focus on the relevant considerations. It noted, however, that factor 21(E)(3)(

j) was clearly “very open-ended”, i.e., “other such factors as the tribunal considers relevant”, and that the factors are not weighted which it said, “can pull on some issues in different, if not to say conflicting, directions”. [ 55 ] The Tribunal saw its task as “arriv[ing] at a sensible, rational balance among the

Section 21E(3) factors in relation to every relevant issue – in this context, salaries”. [ 56 ] The Tribunal noted that it undertook its task with what it referred to as the following “stern admonitions” of the Supreme Court of Canada in Bodner at para. 17 : “The commission must objectively consider the submissions of all parties and any relevant factors identified in the enabling statute and regulations. Its recommendations must result from a fair and objective hearing. Its report must explain and justify its position.” [ 57 ] The Tribunal Report sets out at length its synopsis of the main submissions of the parties on each

Section 21E(3) factor. [ 58 ] The Tribunal’s analysis with respect to the

Section 21E(3)(

a) factor, “the constitutional law of Canada ” is as follows: The Government acts in relation to this factor within the framework of the division of powers among the branches of the state expanded upon in the immediately preceding paragraph. The Association highlighted judicial comments which incorporated the idea that “the judiciary has developed from a dispute resolution mechanism to a significant social institution with an important constitutional role…”. The Tribunal believes that it is worthwhile to emphasize certain aspects of this latter point.

Canadian courts, through the mechanisms of constitutional and administrative law, have the authority to ensure that legislatures and governments keep within the bounds of their respective spheres of authority. In some countries, this role or function is deemed of such importance that it cannot be entrusted to the ordinary courts of the land, but must be reserved to specialized constitutional courts. In Canada we trust our judges to do this work in the course of ordinary litigation, where an allegation arises that a legislature or a government authority has stepped outside the bounds of its authority.

While this role is largely within the powers of superior courts which are clothed by judicature acts with inherent jurisdiction, even provincial courts exercise this rather awesome authority. Thus it is, that a judge in the Provincial Court in this Province is a “court of competent jurisdiction” for purposes of granting remedies under

section 24 of the Charter of Rights and Freedoms when conducting a criminal trial. That judge, in those seemingly ordinary circumstances, can declare that a peace officer, a correctional officer or any other agent of the government has contravened the Charter and must be brought into line with the Constitution. Public servants and civil servants in this country can thus have their actions scrutinized in the ordinary courts to see that they pass constitutional muster.

This is an important reason why Canadian judges, including Nova Scotia’s Provincial Court judges, are not simply “civil servants”, but rather have a special status under the Constitution in the matter of regulating the conduct of public servants, from the very highest to the lowest in the governmental hierarchy. Such considerations are not to be treated lightly as aspects of “the constitutional law of Canada” for purposes of

section 21E(3) (

a) of the Provincial Court Act . [Emphasis added] [ 59 ] The Tribunal’s analyzed the

Section 21E(3) (

b) factor, “the need to maintain the independence of the judiciary ” as follows: As mentioned above…the Association rightly stressed the Supreme Court of Canada’s observation that “…public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation…”. The Government quite correctly did not derogate from this proposition, but perceptively noted that there are both individual and institutional aspects to protecting judicial independence.

Both of the parties acknowledged that the current salary level for Nova Scotia Provincial Court judges is not so low as to constitute a real or perceived invitation to bribery or corruption, and the Tribunal is in accord. However, it is to be noted that some Nova Scotia Provincial Court judges have been lured to the Supreme Court of Nova Scotia over the years, and one cannot but be sensitive in this context to the federal provincial salary discrepancy, a topic which will be discussed below. [ 60 ] The Tribunal’s analysis with respect to the

Section 21E(3) (

c) factor, “the need to attract excellent candidates for appointment as judges ” is as follows: The Association noted that the most recent appointments to the Provincial bench are “…excellent and supremely qualified appointments”. The Government apparently agreed through its assertion that the recent provincial appointments “stack up very well” in comparison to newest federal appointees to the Supreme Court of Nova Scotia, and discounted any problem, perceived or real, in relation to the federal-provincial judicial salary gap.

The Tribunal would observe in this context that the pool of candidates, as the Association states, is the same for both federal and provincial benches. This pool is well-educated, professionally trained and highly experienced group of legal practitioners. The Government asserted in this context that current Provincial Court judges’ salaries put our judges in the top 1% of earners in the Province. But quite frankly, many members of the pool of qualified candidates find themselves in that elite company as well.

By national standards, the threshold to enter the top 1% of income earners in Nova Scotia is shockingly low. Thus, the top 1% of income earners as a negative benchmark for not raising Provincial Court judges’ salaries is not very helpful in relation to the question of whether current salaries will continue to be adequate to attract excellent candidates as one looks forward to the next three

years, which are the scope of this Tribunal’s mandate. [ 61 ] The Tribunal then turned to the

Section 21E(3) (

d) factor, the “unique nature of the judges’ role ”: In addition to the Tribunal’s remarks above concerning the unique constitutional role played by judges as one of the three branches of the modern democratic state, the Tribunal believes it is critical under this rubric to consider what provincial courts actually do on a daily basis in this Province. This analysis, in some considerable measure, overlaps with factor 21E(3)(i), “the nature of the jurisdiction and responsibility of the court”.

While the Provincial Court has important jurisdiction over some family matters in some parts of the Province, the core of the Provincial Court’s responsibilities rest within its role as the primary court for criminal matters throughout the Province. Virtually all criminal matters start in Provincial Court, and with the exception of serious indictable matters […..] most criminal matters are disposed of in Provincial Court. Many criminal matters are within the absolute jurisdiction of Provincial Court [……].

In other words, except in the rare instances of jury trials or an accused’s election for a trial judge or a Supreme Court judge sitting alone, the Provincial Court judges are the predominant face of criminal justice for the people of Nova Scotia. It is well known that Provincial Court judges are the segment of the judiciary in this Province who are, for the most part, the true criminal law specialists, whose expertise and experience in the field can be relied upon. By comparison, other judges in the Province deal with criminal matters on a more occasional basis.

Day in and day out, Provincial Court judges mete out criminal justice and struggle with the question of whether accused persons are guilty or not, and if guilty, what the sentence should be. The liberty and security of the person of significant members of Nova Scotia citizens is in the hands of the Provincial Court on a constant basis. This is unique, and stressful, work. [ 62 ] The Tribunal analyzed the

Section 21E(3) (

e) factor, that it must consider “…the manner in which salaries and benefits paid to judges in the Province compares to judicial compensation packages in other jurisdictions in Canada, including the federal jurisdiction, having regard to the differences between those jurisdictions” as follows: […] As noted above, the Association stresses the widening gap between Nova Scotia’s Provincial Court judges and federally appointed judges, now in the range of $80,000 – the highest it has ever been.

It also notes that Nova Scotia’s provincial judges’ salaries are more than $26,000 less than the national average which is taken as the normal benchmark for PEI judicial compensation. Moreover, the Association believes that Nova Scotia judges should receive more than New Brunswick judges given the “differences” between the Provinces. The Government’s analysis of the “differences” between the provinces under this heading was a considerable interest to the Tribunal, including its observation that “New Brunswick is…a neighbor and ordinarily a comparator for Nova Scotia”.

This latter proposition was reinforced in the Government’s Reply Submissions where the Government took the Association to task for suggesting that the Tribunal should “discard” New Brunswick “purely because their judges are paid the lowest in the country except for Newfoundland [excluding Nova Scotia].

Moreover, the Government references its submissions to the 2014 – 2017 Tribunal where it asserted “…New Brunswick has always been one of the main comparators with Nova Scotia,” and concluded after reviewed economic similarities, that “New Brunswick appears to be the only real comparator for Nova Scotia.” The Tribunal thinks that there is some merit to these Government submissions in the current context of similarities and differences among comparator jurisdictions, and observes that the current New Brunswick salary is $246,880 (with recommendations for this year currently pending from its judicial salary commission) as compared to Nova Scotia’s $236,151.

Of course, the full range of comparative data for provincial judges across the country is found in Appendix B. The Tribunal’s assessment of comparative economic indicators is that Nova Scotia’s economy is as prosperous if not more prosperous than that of New Brunswick. [ 63 ] The Tribunal then analyzed the

Section 21E(3) (

f) factor which requires the Tribunal to consider “… the provision of fair and reasonable compensation for judges in light of prevailing economic conditions in the Province and the overall state of the Provincial economy ”. The Tribunal noted that this factor “has, somewhat surprisingly, become almost as contentious between the Government and the Association as the ‘jurisdictional comparators’ starting factor”.

It stated: […] It is interesting to note that starting from the same documents (the Government’s Fiscal Brief, Budget projections, private sector analysis, and the like), the Government and the Association paint very different pictures of “prevailing economic conditions” and “the overall state of the economy” – the Association taking a rosier view than the Government, as described above. However, even the Government concludes that the data shows that “[t]he outlook in the short term for Nova Scotia is stable with modest growth”.

The Fiscal Brief suggests that real GDP growth for 2015 is 0.8% for Nova Scotia, which was the slowest for “non-energy producing” economies but that real GDP growth is forecast for 2016 at 0.9% and for 2017 at 0.8%, while the Province suggests that real GDP growth for 2018 may be 0.9%.

Thus, while the prevailing economic conditions and overall state of the economy suggest somewhat sluggish growth, the Tribunal sees stable if modest improvement, which does not necessarily comport with the view that economic conditions must exclude fair and reasonable augmentation of judicial compensation for Nova Scotia’s provincial judges, particularly in the light of the more optimistic private sector forecasts mentioned above. [ 64 ] The Tribunal next provided its analysis with respect to the

Section 21E(3) (

g) factor, “the adequacies of judges’ salaries having regard to the cost of living and the growth or decline of real per capita income in the Province ”: […] Data quoted from Statistics Canada sources varies slightly, but is in the same ball park. The Government’s initial Brief indicates that the legislature’s phrase “real per capita income” is an amalgam of measures of wealth such as real GDP, GDP per capita and average annual earnings.

GDP for Nova Scotia was discussed above, but it may be important to point out real GDP in Nova Scotia has varied over the years from 2010 to 2014 (2010 – 2.8%; 2011 – 0.5%; 2012 – 0.9%; 2013 – 0.0%; and 2014 – 0.6%). By contrast, nominal GDP growth was consistently on the plus side (2010 – 5.5%; 2011 – 2.2%; 2012 – 0.5%; 2013 – 2.0%; and 2014 – 1.3%). In addition, real GDP per capita rose modestly each year from a start of $37,888 in 2010 to $37,944 in 2014. Finally, the average annual earnings in Nova Scotia in 2015 was $48,307 which is clearly below Provincial Court judges’ salaries by a factor of almost 5.

Moreover, as the Government pointed out, historically judges’ salaries have risen at a rate higher than the rise in per capita income. The Tribunal thus accepts this factor alone would not warrant a rise in incomes for Provincial Court judges from current rates. [ 65 ] The Tribunal then considered the

Section 21E(3) (

h) factor, “the relevant submissions made to the Tribunal ”. Its analysis of this factor is as follows:

[…] As stated above, the Tribunal has read the written submissions, heard the oral submissions and considered the voluminous accompanying documentation. We have tried to summarize these submissions for each of the “parties” under the relevant headings from

section 21E(3) of the Provincial Court Act . It will have become apparent that the Government, when making submissions in relation to the relevant headings, made frequent reference to the Government’s “wage mandate” of 9%, 0%, 1% and 1.5%/0.5% over four years in dealing with civil and public servants or those “being paid from the purse”. It also made fairly frequent reference to the unproclaimed Public Services Sustainability

(2015) Act which is intended to back up the Government’s “wage mandate”. The Tribunal makes two observations in relation to this approach adopted by the Government. Firstly, the Supreme Court of Canada and Courts of Appeal across this country have indicated that civil servant salaries, for the most part, are not appropriate comparators in the exercise of setting judicial salaries. The Government formally acknowledged this principle, but nonetheless made consistent reference to civil servant salaries to describe context, background and the like in relation to its wage mandate.

This is problematic, because, secondly, the Tribunal is bound to make its recommendations on salaries (and the other issues within its mandate) by considering and balancing the factors found in

section 21E(3) of the Provincial Court Act – duly enacted, and insofar as the sections relating to this Tribunal’s activities are concerned, proclaimed in force, and therefore binding on the Tribunal. On the other hand, the unproclaimed Public Services Sustainability

(2015) Act , and the Government’s wage mandate, is not binding upon this Tribunal in any sense. [ 66 ] The Tribunal also made specific reference to a written submission filed by a single member of the public, which is discussed further in this decision. [ 67 ] The Tribunal then made its salary recommendation, as summarized above. In doing so, the Tribunal provided this further comment: Some comments on the above is necessary.

The base rate in the first year has been arrived at by taking the current New Brunswick judges’ salary rate (our best comparator jurisdiction given the various similarities and differences among those across the country) and adding an amount equal to 0.9% which is the real GDP growth forecast for Nova Scotia for 2016. The Tribunal sees this latter figure as a proxy for the likely growth in the Province’s fiscal capacity for the year and a partial reflection of the rise in the cost of living for the year.

This exercise is necessary since the current New Brunswick salary level is subject to assessment by their next compensation commission, which appears to be a year out of synchronization with our Nova Scotia effort. The Tribunal is convinced that this relatively straight-forward approach nonetheless achieves an appropriate balance among all the facts which we must consider under

section 21E(3) of the Provincial Court Act in light of the submissions we have received. The use of the Consumer Price Index of the previous calendar year to adjust salaries in the two subsequent years, reflects the experience which the current members of the Tribunal have had as members of previous incarnations of the Tribunal. We have experimented in the past with Industrial Aggregate Index (IAI) and with the Consumer Price Index (CPI) for the previous fiscal year. Both of these approaches revealed themselves to be problematic for different technical reasons which need not be elaborated upon here.

Suffice to say that the CPI for the previous calendar year has proved itself a practical and workable means to resolve the question of adjusting judges’ salaries because of rises in the cost of living. The Government’s Reasons – the OIC [ 68 ] The Government’s reasons (the “Reasons”) for departing from the Tribunal’s recommendation that Judges’ salaries be increased by approximately 9.5% over three years (including a 5.45% increase in the first year) are set out in the OIC. [ 69 ] Reason 1 is as follows: 1.

The Tribunal did not adequately consider the public interest and the submission from the public and reflect such interests and views in the Report addressing “Recommendation 1 – Salaries”. The Tribunal found that an approximately 9.5% increases in the salary for Provincial Court Judges over the next three years would be seen as a “ fair and reasonable conclusion ” from the perspective of ordinary Nova Scotians (as concluded at pp. 41 and 42).

This conclusion would not accurately reflect the views of reasonable people undertaking a comparison of the increase proposed by the Tribunal to the lower salary and funding increases to be received by other Nova Scotians receiving remuneration out of public funds including, for example, physicians, Crown Attorneys and public sector workers, among others, and compared to trends in private sector wage growth in Nova Scotia, nor does the Report appropriately reflect the submission from a member of the public received by the Tribunal who expressly stated, “When very large increases in salaries and benefits are given to the upper echelon of society the general public feels helpless…” [Emphasis added] [ 70 ] Reason 2 provides: 2.

The Tribunal made a demonstrable error in not considering the entire compensation package of Provincial Court Judges in Nova Scotia, including the value of the retirement bonus known as the Public Service Award. By regulation enacted in 1986, a Public Service Award must be granted to Provincial Court Judges in Nova Scotia upon retirement or earlier in certain circumstances: see Public Service Award Regulations , N.S. Reg. 282/86 , passed pursuant to the Act . The Public Service Award for a judge who has served 26 years currently exceeds $118,000.

The payment is to be made on retirement although judges may request a tax-free advance payment after 15 years of service. The Tribunal’s omission to consider this retirement payment leads to inconsistency when making comparisons between jurisdictions that pay no such retirement bonus; for example, New Brunswick Provincial Court Judges appointed after April 15, 1970, do not receive a comparable payment or bonus, yet the Tribunal established a recommended salary for 2017 specifically using base salaries of Provincial Court Judges in New Brunswick as the comparator salary; [ 71 ] Reason 3 provides: 3.

The Tribunal did not properly apply clause 21E(3)(

e) and (

f) of the Act , and did not adequately consider the differences between jurisdictions as required by the Act . The Tribunal arrived at its decision in a results-oriented and formulaic manner to achieve an outcome which simply used New Brunswick as the only comparator jurisdiction, which was a significant departure from the same Tribunal’s reasoning in their 2014-2017 Report. For the 2014-17 period, New Brunswick was rejected as a comparator jurisdiction. At

that time, New Brunswick salary levels were materially lower than Nova Scotia. Specifically, in their report of September 23, 2014, when the New Brunswick salary level for Provincial Court Judges was $204,700, the Tribunal (made up of the same members) ordered a 3.8% increase for Nova Scotia Provincial Court Judges to $231,500 for 2014-15 followed by Consumer Price Index increases for each following year. This put Provincial Court Judges in Nova Scotia $26,800 per year higher than the jurisdiction the Tribunal now finds is the only true comparator for Nova Scotia.

The effect and the apparent intent of the Tribunal in the current Report was to accept the submission of the Judges’ Association that achieving proximity to the national average salary level is the single most important factor, despite the many other differences between jurisdictions, including total compensation, housing costs, cost of living, pre-appointment income levels and workload.

To illustrate the Tribunal’s formulaic approach, adopted to move “in proximity to” the perceived national average salary, it is noted the Tribunal has on this occasion selected New Brunswick as the only appropriate comparator (despite the difference in total compensation noted in paragraph 2, above, and that New Brunswick was rejected as a comparator for 2014-17) and then decided to recommend a further increase in the salary level above the New Brunswick level by an additional 0.9% which they said, “… is the real GDP growth forecast for Nova Scotia for 2016.

The Tribunal sees this latter figure as a proxy for the likely growth in the Province’s fiscal capacity for the year… ” (p. 42). There is no rational basis for this conclusion; there are many circumstances where a government’s fiscal capacity can decline despite real GDP growth, for example where GDP growth is driven by increased government spending or where government has a material prior year adjustment. Hoped-for GDP growth is not a valid proxy for government fiscal capacity nor is it relevant to the analysis called for by clauses 21E(3)(

e) and (

f) of the Act . In fact, GDP growth should have very little relevance to the Tribunal’s work, particularly when the Tribunal overlooks in its analysis that GDP per capita in Nova Scotia is approximately $15,000 less than the national average GDP per capita; [ 72 ] Reason 4 provides: 4.

In considering if the current salary is sufficient to support recruitment of qualified members of the Nova Scotia Bar as Provincial Court Judges in Nova Scotia, the Tribunal did not identify and consider in the Report any evidence of the current actual income levels of the pool of candidates eligible for appointment as Provincial Court Judges in Nova Scotia. The Tribunal simply concluded, without evidence of actual income levels whether specific or aggregated, that many were in “ elite company ” (p.35) as part of the top 1% earners in Nova Scotia (p. 35).

Actual information about pre-appointment income levels and comparison to the current salary level for provincial court judges is a practical necessity when assessing whether the salary level of provincial court judges in Nova Scotia is sufficient “ to attract excellent candidates for appointment as judges ” as required by clause 21E(3)(

c) of the Act . The Tribunal did not consider this factor. The Tribunal separately observed that both “parties” agreed that excellent and supremely qualified candidates are currently being attracted to the court (p. 34). The Tribunal made a further analytical error by concluding: “ But quite frankly, many members of the pool of qualified candidates find themselves in that elite company as well. By national standards, the threshold to enter the top 1% of income earners in Nova Scotia is shockingly low.

Thus, the top 1% of income earners as a negative benchmark for not raising Provincial Court judges salaries is not very helpful in relation to the question of whether current salaries will continue to attract excellent candidates as one looks forward to the next three years, which are the scope of this tribunal’s mandate” (p. 35). Concluding the threshold to enter the top 1% of income earners in Nova Scotia is “shockingly low” and then disregarding it as a factor in their assessment is an analytical error.

In fact, this supports the view that Provincial Court Judges should not be insulated from the economic realities faced by other Nova Scotians. The Supreme Court of Canada has noted that judicial independence exists “for the benefit of the judged, not the judges”. (see para. 4 in Provincial Court Judges Association v. New Brunswick Minister of Justice et al , 2005 SCC 44 ); [ 73 ] Reason 5 is as follows: 5. The Tribunal did not properly apply clause 21E(3)(

f) of the Act which requires consideration of prevailing economic conditions which includes the current state of public finances in Nova Scotia. The modest surplus currently forecast in the Government’s statutorily mandated fiscal plan is dependent on all persons receiving remuneration out of public funds (whether executive, legislative or judicial) receiving salary increases that do not exceed the growth capacity in the fiscal plan. The fiscal plan does not contemplate making a special exception for the wages of Provincial Court Judges.

In recommending to the Governor in Council that an exception be made for Provincial Court Judges and deciding the public sector wage mandate reflected in the fiscal plan created under the Finance Act ,

Chapter 2 of the Act of 2010 (the Finance Act), and the legislation supporting the fiscal plan (including the yet to be proclaimed Public Services Sustainability Act ,

Chapter 34 of the Acts of 2015) is “ not binding on the Tribunal in any sense ” (p. 41, emphasis added ) the Tribunal gave no or inadequate consideration to the fiscal needs of Nova Scotians as set out in the fiscal plan. The independent constitutional roles of the legislature and executive with regard to budgeting, raising revenue through taxation and expenditure of public money compels the Governor in Council to vary the salary recommendation of the Tribunal.

The Tribunal has erred and/or exceeded its statutory mandate in recommending salary levels increases over the next three years which will exceed amounts available in the fiscal plan as set by the executive and legislative branches of Government pursuant to Sections 5, 11 and 56 of the Finance Act .

The proposed salary increase set out in Recommendation 1 is excessive in the current circumstances having regard to the prevailing economic conditions of the Province of Nova Scotia and the Tribunal did not give sufficient weight to nor properly analyze and consider the fiscal capacity of the Province. [ 74 ] Reason 6 and other Reasons : 6. In carrying out its mandate the Tribunal has made procedural errors (further reasons set out below) which resulted in the Tribunal too closely adopting the procedures of adversarial interest arbitration arising in collective bargaining processes under labour law.

The Tribunal should approach their task using the procedures of an independent commission (see for example

Section 45A of the House of Assembly Act , Chap

[…]