The Provincial Court Judges’ Association of British Columbia applied for judicial review of the British Columbia government’s response to the recommendations on provincial court judges’ remuneration made by the 2019 judicial compensation commission. The commission recommended a salary increase for judges and judicial justices larger than what had been proposed by the government, which was a two per cent increase over three years.
The province then capped the salary increase at 2.2 per cent each year in July 2020, arguing the COVID-19 pandemic meant the province’s economic and financial position had changed significantly since the commission issued its recommendations. It also took issue with the commission’s handling of s. 5(5)(d) of the Judicial Compensation Act, which requires the commission to consider “changes in the compensation of others paid by the provincial public funds in British Columbia,” and said the proposed three-year salary increases were out of proportion with those being received by others who are paid from provincial public funds and the commission’s conclusion that salary increases of more than two per cent were granted “on a fairly regular basis” was inaccurate.
But Justice Neena Sharma sent the compensation issue back to the legislature for reconsideration, ruling its decision to overrule the commission’s recommendations did not meet the three-part test which applies when conducting judicial review of the government’s response to an independent commission’s recommendations regarding judicial remuneration (Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), [2005] 2 S.C.R. 286, 2005 SCC 44).
The tripartite test requires courts to ask whether the government has provided a legitimate reason for departing from the commission’s recommendations; does the government’s reasoning rely upon a reasonable factual foundation; and has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved.
Justice Sharma wrote the B.C. government’s reliance on the pandemic was “infused” with its dissatisfaction that the commission rejected applying the annual two per cent general wage increase contained in the B.C. government’s 2019 sustainable services negotiating mandate to judges (Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General), 2023 BCSC 520, released April 4).
“[The government’s response] is saying that increasing the pay of judges by an amount roughly equal to the pay increase given to public sector employees means judges’ pay increase will not be less than public servants’ pay increase. It is difficult not to see this point as being grounded more in the 2019 Mandate than the pandemic,” she wrote. “This violates the constitutionally mandated relationship between the legislature and executive with the judiciary. When all those factors are viewed in the context of the history of the judicial compensation commission process in British Columbia, I cannot conclude the third step of the test has been met.”
Justice Sharma also rejected the province’s arguments that the commission’s reliance on the unique constitutional status and job function of judges, which differentiates them from civil servants, was an error.
“The Attorney General submits this constitutional relationship is a constant and, indeed, the reason why the commission process was first established,” she wrote. “Not only do I reject the Attorney General’s argument on this point, I find it would be a serious flaw if the commission did not explicitly ground its reasoning in the unique constitutional status of judges, especially with regard to how it approaches s.5(5)(d). The fact of judges’ unchanging status in no way diminishes the relevance and importance of the constitutional significance of that unique status at every judicial compensation commission process.”
Counsel for the Provincial Court Judges’ Association declined comment for this article. Counsel for the province did not respond to a request for comment.
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