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CONSTITUTIONAL PROCEEDINGS - Practice and procedure - Discovery

Friday, July 31, 2020 @ 12:35 PM  


Appeal by the Attorney General of Nova Scotia from a decision of the Nova Scotia Court of Appeal dismissing its appeal from an order requiring it to produce its report made to Cabinet. The judicial compensation commission charged with making recommendations concerning the salaries, benefits and pensions of judges of the Provincial Court and Family Court had recommended a 5.5 per cent increase in the salaries of provincial judges in 2017‑18, a 1.2 per cent increase in 2018‑19 and a 2.2 per cent increase in 2019‑20, in order to bring judicial salaries in Nova Scotia in line with those across the country. The Attorney General provided a report to Cabinet concerning the commission’s recommendations. The Lieutenant Governor in Council made an order in council that reduced the rate of salary increase to nil in 2017‑18 and 2018‑19 and to one per cent in 2019‑20, explicitly based on the report of the Attorney General. The Provincial Court Judges’ Association sought judicial review of the order in council. The motion judge held that the Attorney General’s report was relevant and that the portions of the report not subject to solicitor-client privilege were to form part of the record. The Court of Appeal upheld that decision.

HELD: Appeal allowed in part. Applying the framework developed in the companion appeal, British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, there was some basis to believe the report might contain evidence that tended to show the government failed to meet a requirement of the Bodner v. Alberta test. The public reasons given for the government’s decision to depart from the commission’s recommended increase in judicial remuneration provided some basis to believe that the government might have relied on improper considerations and might not have respectfully engaged with the commission process. Two components of the report, the discussion of government-wide implications and the communications plan, provided some evidence that the government failed to meet the Bodner test and were to be produced. The rest of the report was either protected by solicitor-client privilege or provided no such evidence and was not to form part of the record. The public interest in maintaining the confidentiality of the discussion of government-wide implications and the communications plan was outweighed by the public interest in their being disclosed, particularly given their importance to the court’s determination of the merits of the application. Public interest immunity did not apply to those parts of the report.

Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, [2020] S.C.J. No. 21, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., July 31, 2020. Digest No. TLD-July272020012-SCC