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B.C. mulls appeal of pay hike for judges

Thursday, April 23, 2015 @ 8:00 PM | By Cristin Schmitz

British Columbia is considering whether to ask the Supreme Court of Canada to overturn a judgment that orders the province to implement pay and pension improvements for its 150 judges.

The B.C. Court of Appeal split 2-1 to declare that Provincial Court judges are entitled to salary increases and pension adjustments for the period 2011 to 2014, as recommended in 2010 by the independent triennial Judges Compensation Commission (JCC).

The JCC recommended the judges’ annual salaries of $231,138 in 2010 (second only to Ontario judges at that time) be increased, as of April 1, 2013, by the cumulative, compounded increase in inflation in the preceding three years. The province refused, arguing that the judges’ salaries should be frozen like the pay of other public servants, given the need for government spending restraint in difficult fiscal times.

The Court of Appeal’s rejection of that position in its March 27 ruling is a win for judges who are not only challenging the legislature’s refusal to implement most of the 2010 JCC recommendations, but have launched a separate judicial review of the legislature’s partial rejection last year of the recommendations of the 2013 JCC.

The majority’s decision in respect of the 2010 JCC is in line with appellate decisions over the past eight years from Manitoba, New Brunswick, and Quebec. The appeal courts all concluded that the governments’ justification for refusing to follow the pay commissions’ recommendations did not meet the deferential test of simple rationality mandated by the Supreme Court in Bodner v. Alberta [2005] S.C.J. No. 47.

Notably, in each case the appeal courts cited “exceptional” circumstances for ordering governments to carry out the pay commissions’ recommendations, rather than referring the matter back to the legislatures. The courts did so over strong objections from the governments that the typical constitutional remedy mandated by Bodner calls for the reviewing court to refer the matter back to the legislature for reconsideration if the government’s reasons for rejecting the recommendations of a judicial compensation committee are constitutionally flawed.

The B.C. government is currently weighing whether to seek leave to appeal to the Supreme Court, particularly since dissenting Justice David Harris would have upheld the conclusion of the judge below that the government acted reasonably in light of the wage restraints imposed on other public servants in a time of fiscal austerity.

“The ruling is a significant one, as the matter concerns the relationship between the courts and the legislature,” B.C. Deputy Attorney General Richard Fyfe told The Lawyers Weekly in a prepared statement. “The B.C. government is taking the time necessary to review the decision and consider its options.”

The B.C. government issued two negative responses to the 2010 JCC recommendations. Initially it rejected most of the recommendations in 2011, and then rejected them again in its judicially-ordered “reconsideration” in 2013.

The legislature’s 2013 reconsideration refusing to implement the JCC’s recommendations failed to meet the standard of rationality in Bodner, Justices Edward Chiasson and David Frankel held in Provincial Court Judges’ Assn. of British Columbia v. British Columbia (Attorney General) [2015] B.C.J. No. 574.

They allowed the provincial court judges’ association appeal from a B.C. Supreme Court decision last year dismissing the association’s judicial review application.

The majority concluded the legislature should not have considered financial data from 2013 when it reconsidered its initial response to the 2010 JCC report. JCCs operate prospectively, and both the commission and the parties make their submissions based on financial projections. “To permit reconsideration based on circumstances two years after the JCC recommendation risks making those recommendations meaningless or impossible to analyze,” Justice Chiasson wrote. “That is not the process mandated by the legislation.”

It was also not appropriate for the government to anchor its 2013 reconsideration on substantive reasons it did not advance in its initial response to the JCC’s report, the majority held.

Reconsiderations are not an opportunity for the government “to ferret out new reasons” for rejecting JCC recommendations, said Justice Chiasson, citing Bodner.

In his dissent, Justice Harris agreed it was illegitimate for the government to rely on current real financial data to undermine the JCC’s recommendations, which were based on prospective financial data projections. However, he would have dismissed the judges’ appeal. He concluded that the legislature acted reasonably in refusing to implement the pay increase on the basis that it was not fair and reasonable given the wage restraints imposed on other public servants.

“At the very most, the later-acquired information is merely corroborative of the view taken by the government of the factual frailty in the foundation of the [JCC’s] recommendation,” he wrote.

He also said that setting aside the legislature’s motion and declaring that the judges are entitled to the JCC recommendations encroaches on the jurisdiction of the government and legislature to allocate public resources from the public purse.

Counsel for the judges’ association did not wish to comment on the case.