The prothonotaries of the Federal Court sought judicial review of a decision of the federal Minister of Justice rejecting virtually all the recommendations made in a Report of the Special Advisor on Federal Court Prothonotaries’ Compensation. The Federal Court dismissed the application for judicial review, on the basis that the primary reason given in the Minister’s Response, regarding significant changes in economic conditions, was reasonable. However, the Court also found that the Response and its reasons did not respond appropriately to the recommendations of the Special Advisor, and did not meet constitutional requirements for appropriate recognition of judicial independence.

Administrative law – Decisions of administrative tribunals – Ministerial orders – Judges – Remuneration of judges – Special Advisor – Recommendations – Government rejection – Employment law – Judicial review aplication

Aalto v. Canada (Attorney General), [2009] F.C.J. No. 969, Federal Court, August 28, 2009, MacKay D.J.

The office of prothonotary was created by the Federal Court Act in 1971. Prothonotaries have served as judicial officers of the Federal Court, appointed by the Governor General in Council, to serve during good behaviour until age 75. Prothonotaries are judicial officers sharing judicial independence in their work as judges do. Their role in the Federal Court has expanded, particularly in the last dozen years, in both substantive and procedural matters, as the result of changes in the Federal Court’s rules to provide more efficient and effective judicial oversight in dealing with the variety of claims and applications, many of them complex, before the Court. Prothonotaries are regularly engaged in hearing motions or with other case management proceedings, or in trials, in a variety of cases before the Court.

In 2007, a Special Advisor was appointed to consider and report on, in general terms, the adequacy of the salary and benefits of the prothonotaries of the Federal Court, having regard to such matters as their nature and duties, the salary and the benefits of appropriate comparator groups, the prevailing economic conditions in Canada, the role of financial security in ensuring the independence of prothonotaries, the need to attract outstanding candidates, and any other objective criteria that the Special Advisor considered relevant.

The Special Advisor’s Report was delivered on May 30, 2008, and included a number of specific recommendations and some other proposals for consideration. The Minister’s Response was delivered on February 11, 2009. It rejected virtually all the Special Advisor’s recommendations on two general but distinct grounds. The primary ground was the deterioration of the global economic situation and the significant adverse effects on the financial position of the Government of Canada after the Special Advisor had concluded his enquiry and submitted his recommendations. The second ground was the Government’s concerns with “some of the assumptions that underpin the Special Advisor’s recommendations, in particular in relation to salary” but also in relation to pensions or other benefit enhancements proposed by the Report.

The Court outlined the general principles applicable to a consideration of the Commission and Response process. Judicial officers, assured of judicial independence by the common law and the constitution, are to have remuneration for the work determined following a “Commission process” that is independent, objective and effective, and one that has a meaningful effect on judicial remuneration. The jurisprudence is clear that the Commission process, to be effective, requires a fair, open, objective, assessment and a reasonable response addressed to the recommendations made. This did not require that the Commission’s recommendations be binding – the Government may depart from the recommendations if it justifies its decision on rational, legitimate grounds that are complete, tailored to the recommendations and based on factual foundations. Judicial review of the Government’s Response depends upon a three-fold test:

i.  Has government articulated a legitimate reason for departing from the Commission’s recommendations?

ii.  Are the stated reasons for the response based upon a reasonable factual foundation?

iii.  Viewed globally, has the Commission process been respected and have its purposes been achieved? Those purposes are to preserve judicial independence and depoliticize the setting of judicial remuneration. The last phrase, depoliticizing the decision, serves to preserve judicial independence by restricting unilateral decisions by government on remuneration for judges and judicial officers.

In assessing the Minister’s Response, particularly its factual foundation, the Court must give due deference to the role of the Minister, of the Government, and consider whether on the evidence before the Court, it was rational for there to be reliance on the factual bases for the decision taken.

The Court turned to consider the Minister’s Response in this case. The Court found that there was evidence of a factual basis to support the Government’s departure from the recommendations, that is, the extraordinary deterioration of economic conditions and of public finance. If new facts or circumstances arise after the release of a compensation commission’s report, the Government may rely on that in its reasons for varying the Commission’s recommendations. In this case, the extraordinary economic circumstances relied upon by the Government provide a reasonable basis for the first ground of its response and its actions in not accepting the recommendations of the Special Advisor. That finding precluded the Court granting the application sought. In the result, the Court declined to set aside the Minister’s Response.

The Court’s first finding did not mean that the Response met the accepted test for a rational or legitimate response to the recommendations made by the Special Advisor. In adopting the decision to reject, not merely to modify, the Advisor’s recommendations, for extraordinary economic reasons, the Minister’s Response was made without reference to the reasons for or to the recommendations themselves. The Court found that the Response was not rational with reference to the recommendations of the Special Advisor. This judgment was equally applicable to the reasonable bases supporting government’s decision and action to deal with extraordinary economic conditions and deteriorating public finances after May 30, 2008, and to the additional considerations raised in the Response. If neither the overarching ground nor the additional grounds for the Response dealt appropriately with the recommendations of the Special Advisor, then viewed globally, the reasons expressed in the Response do not respect the purposes of the process for establishing judicial remuneration, as established by the relevant jurisprudence. The Response did not meet the constitutional requirements of the Commission and Response process for establishing compensation for judicial officers. The Court concluded by observing that in our democracy, the rule of law is a basic pillar resting upon judicial independence. That independence is a basic public value, secured by essential support for courts and judicial work and by appropriate remuneration for all judicial officers.

In the result, the application for judicial review was dismissed.

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