The Provincial Court Judges’ Association of New Brunswick (the “Association”) appealed the lower court’s decision that the Government of New Brunswick had justified its decision to reject the recommendations of a judicial remuneration commission on salary increases, according to a standard of simple rationality. On appeal, it was upheld that the recommendations of a judicial remuneration commission were not binding on government; however, if a government chose to reject them, it had to justify its decision on a standard of simple rationality. Although the Government’s reasons for rejecting the salary recommendation were expressed in recitals, thus exacerbating the difficulty of applying any review standard, it was held that with respect to the parity argument (parity with judges of the Court of Queen’s bench) and attracting qualified applicants, the Government’s decision to reject the Commissioner’s salary recommendation met the simple rationality test.

28. October 2003 0

Administrative law – Remuneration of judges – Judicial Remuneration Commission – Recommendations – Government rejection – Simple rationality standard

Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2003] N.B.J. No. 321, New Brunswick Court of Appeal, August 20, 2003, Turnbull, Larlee and Robertson JJ.A.

The government of New Brunswick appointed a judicial remuneration commission to enquire into the remuneration and benefits of provincial court judges for the 2001-2003 period. The Commission recommended that the salaries of provincial court judges be increased from $141,000 to $170,000, plus annual indexing to prevent erosion, as well as various improvements in benefits. The Government rejected most of the commission’s salary recommendations apart from providing annual cost of living adjustments.

The Provincial Court Judges’ Association of New Brunswick (the “Association”) applied for an order requiring the government to fully implement the commission’s recommendations.

The Applications Judge upheld the Government’s decision with respect to the Commission’s salary recommendations, but allowed the application with respect to pensions, vacation and health care matters and declared those recommendations to be binding. The matter of life insurance was remitted to the Commission for reconsideration. On the salary issue, the Applications Judge acknowledged that the onus was on the Government to justify its rejection of a recommendation according to the review standard of “simple rationality”. The role of the commission was to consider, after a fixed period of time had elapsed since its last report, the adequacy of judicial salaries in light of the cost of living in the province and other factors relevant to financial security. The compensation set by the 1998 commission was adequate to preserve and maintain a state of financial security for judges. The 2001 commission failed to consider whether that level of compensation continued to be adequate; instead, it was preoccupied with narrowing the gap between the salaries of provincial court judges and those of federally appointed judges. The Applications Judge also found no evidence that, by rejecting the commission’s salary recommendations, the executive intended to interfere with judicial independence.

The Association appealed the Applications Judge’s decision. On appeal, the Court identified the issue as whether the Government’s reasons for rejecting the Commission’s salary recommendations satisfied the review standard of simple rationality.

The simple rationality test is drawn from the Supreme Court of Canada’s ruling in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 (the “PEI Reference Case”). At paragraph 183, Chief Justice Lamer lays down the tenets of the simple rationality standard:

The standard of justification here, by contrast, is one of simple rationality. It requires that the government articulate a legitimate reason for why it has chosen to depart from the recommendation of the commission, and if applicable, why it has chosen to treat judges differently from other persons paid from the public purse. A reviewing court does not engage in a searching analysis of the relationship between ends and means, which is the hallmark of a s.1 analysis. However, the absence of this analysis does not mean that the standard of justification is ineffectual. On the contrary, it has tow aspects. First, it screens out decisions with respect to judicial remunerations which are based on purely political considerations, or which are enacted for discriminatory reasons. Changes to or freezes in remuneration can only be justified for reasons which relate to the public interest, broadly understood. Second if judicial review is sought, a reviewing court must inquire into the reasonableness of the factual foundation of the claim made by the government, similar to the way that we have evaluated whether there was an economic emergency in Canada in our jurisprudence under the division of powers.

It is clear that the review standard does not require the court to engage in a searching analysis of the government’s decision as is required under s.1 of the Charter. As well, the Supreme Court cautions that even where a reason for rejecting a salary recommendation is dependent on a factual matter, the reviewing court is to review the reasonableness of the factual claim in the same way that the Supreme Court evaluated the Federal Government’s claim of an economic emergency in the Reference re Anti-Inflation Act, [1997] 2 S.C.R. 373. In that case, the Supreme Court did not demand exacting evidence of the federal government’s claim of a “national economic emergency” requiring a legislative solution to the problem of runaway inflation.

The simple rationality test does not require the government to demonstrate that the commission’s recommendation is wrong, irrational or unreasonable. It need only demonstrate the rationality of its own decision. Moreover, it is not for the reviewing court to substitute its own opinion for that of the government or to decide whether the government’s reasons for rejection are right or wrong. The government must articulate a legitimate reason to explain why it has chosen to depart from a commission recommendation. This leads to question whether the government can reject a commission’s salary recommendation simply because it is not prepared to give the same weight to relevant factors as did the commission. It seems that the government may validly do so, provided it gives reasons.

Applying the review standard, the Government’s reasons for rejecting the 2001 Commission’s salary recommendations are expressed as recitals. The proper approach is to group those recitals together from the basis of a reason for rejecting the Commission’s salary recommendations since a number of recitals make no sense unless examined in the context of others. If the Recitals are looked at contextually, the Government is advancing four reasons for rejecting the Commission’s salary recommendations: present salary is adequate; salary increase is excessive; no requirement that provincially appointed judges need to maintain a degree of parity with judges of the Court of Queen’s bench; and attracting qualified applicants.

The Government’s assertion that the present salary level is adequate as there has been no material change since the implementation of the 40% increase recommended in 1998 fails the simple rationality test. It does not address the fact that salaries of other provincial and federal judges have risen since then. With respect to the assertion that the salary increase was excessive, there was no merit to the Government’s plea of impecuniosity and the comparison to other senior civil servants was not a void one. For these reasons, the Government’s objection to the 2001 Commission’s salary recommendation based on “excessiveness” fails to meet the review standard of simple rationality. With respect to the parity argument, the Government was justified in its contention that the Associations’ claim to salary parity with federally appointed judges was misguided. The federal salary was fixed by reference to factors that had no application in the provincial context and, for these reasons, the Government’s decision to reject the Commission’s salary recommendation because of parity met the simple rationality test. Finally, the Government was entitled to reassert its position that the present remuneration package was capable of attracting qualified lawyers to the Bench, once the value of the judicial annuity was acknowledged.

Applying the review standard of simple rationality, the Government’s decision to reject the Commissioner’s salary recommendations met the simple rationality test and must stand.

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