Ontario Deputy Judges Association v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as Ontario Deputy Judges Assn. v. Ontario]

98 O.R. (3d) 89

Ontario Superior Court of Justice, Divisional Court, Swinton, Low and van Rensburg JJ. July 3, 2009

Charter of Rights and Freedoms -- Independent and impartial tribunal -- Judicial independence -- Remuneration -- Government response to recommendations of Deputy Judges Remuneration Commission with respect to increases in per diem rates for deputy judges meeting constitutional standard of rationality -- Government giving legitimate reasons for departing from Commission's recommendations -- Government's reasons relying on reasonable factual foundation -- Government's response respecting Commission process.

At the time of the establishment of the Deputy Judges Remuneration Commission, deputy judges, the primary adjudicators in the Small Claims Court, were paid $232 per day. The Commission recommended a per diem rate for deputy judges of $475 effective January 1, 2005, rising to $750 effective January 1, 2009. In response, the government accepted the January 1, 2005 rate as a fair and reasonable level of compensation as of that date but was of the view that the Commission did not give enough weight to provincial economic conditions, such as the inflation rate as well as the growth or decline in per capita income and recent Ontario public sector compensation trends. The government concluded that the fair and reasonable per diem for each of the years 2006 through 2009 was the rate of $475 adjusted to take into account of those factors. The rates adopted increased from $475 as of January 1, 2005 to $528 as of January 1, 2009. The applicant applied for judicial review of the government's response.

Held, the application should be dismissed.

The government had given legitimate reasons for varying the Commission's recommendations. There was no indication that the government's response was based on political or discriminatory considerations or any improper motive to reduce the compensation of deputy judges below a basic minimum or to single them out for negative treatment. The government had not simply ignored the Commission's recommendations and reiterated its original submissions. The government's reasons relied on a reasonable factual foundation. It relied on economic [page90 ]and labour relations data that were before the Commission. It was entitled to do so, as the Commission did not address the significance of data relating to economic conditions and compensation trends. The government's response respected the Commission process and depoliticized the relationship of the executive/legislative branches and the judicial branch. The response of the government met the constitutional standard of rationality.

APPLICATION for judicial review of the government response to recommendations of the Deputy Judges Remuneration Commission.

Cases referred to 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), 85 O.R. (3d) 79, [2005] 2 S.C.R. 286, [2005] S.C.J. No. 47, 2005 SCC 44, 255 D.L.R. (4th) 513, 336 N.R. 201, [2006] 1 W.W.R. 407, J.E. 2005-1362, 49 Alta. L.R. (4th) 211, 367 A.R. 300, 288 N.B.R. (2d) 202, 201 O.A.C. 293, 30 Admin. L.R. (4th) 1, 14 C.P.C. (6th) 1, 135 C.R.R. (2d) 55, 141 A.C.W.S. (3d) 213; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, 150 D.L.R. (4th) 577, 217 N.R. 1, [1997] 10 W.W.R. 417, J.E. 97-1787, 206 A.R. 1, 121 Man. R. (2d) 1, 156 Nfld. & P.E.I.R. 1, 49 Admin. L.R. (2d) 1, 118 C.C.C. (3d) 193, 11 C.P.C. (4th) 1, 46 C.R.R. (2d) 1, 73 A.C.W.S. (3d) 592, 35 W.C.B. (2d) 513, apld

Other cases referred to Ontario, Deputy Judges Assn. v. Ontario (2006), 2006 17250 (ON CA), 80 O.R. (3d) 481, [2006] O.J. No. 2057, 268 D.L.R. (4th) 86, 210 O.A.C. 94, 28 C.P.C. (6th) 1, 141 C.R.R. (2d) 238, 148 A.C.W.S. (3d) 244 (C.A.), affg (2005), 2005 42263 (ON SC), 78 O.R. (3d) 504, [2005] O.J. No. 4912, [2005] O.T.C. 974, 18 C.P.C. (6th) 324, 139 C.R.R. (2d) 38 (S.C.J.)

Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43

P. David McCutcheon and Reena Goyal, for applicant. Sarah T. Kraicer and Josh Hunter, for respondents.

The judgment of the court was delivered by

SWINTON J.: --

Overview

[1] The Ontario Deputy Judges Association brought this application for judicial review to quash or set aside the May 23, 2008 response of the Government of Ontario to the recommendations made by the First Deputy Judges Remuneration Commission (the "Commission"). The issue in this application is whether the government's response met the constitutional standard of rationality. [page91 ]

Background

[2] Deputy judges are the primary adjudicators at the Small Claims Court in Ontario. At the time of the establishment of the Commission in 2006, they were paid $232 per day, a rate first set in 1982.

[3] Over the years since that rate was set, there have been significant changes in the operation and structure of the Small Claims Court. The following description is drawn from the one found in the Commission report.

[4] At the time of the Commission inquiry, there were 423 deputy judges in Ontario. Each was appointed for a three-year term by a regional senior judge of the Superior Court with the approval of the Attorney General.

[5] In addition to these judges, who were paid a per diem rate of $232, there were two full-time judges and two supernumerary judges who presided in Small Claims Court. These judges remained from the previous Provincial Court (Civil Division), which was eliminated in 1990 when the present Small Claims Court was created. Their remuneration is determined by the Triennial Provincial Judges Remuneration Commission constituted pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Framework Agreement which forms part of that Act. At the time of the Commission report, the salary of the full-time judges was $218,655.38 plus benefits, including a pension. The supernumerary judges were paid a per diem based on this annual salary, which amounted to $995.39 a day.

[6] The Small Claims Court is the busiest court of civil jurisdiction in Ontario. In 1982, it had a monetary jurisdiction of $1,000. Over the years, the jurisdiction has changed, and by 2001, it had risen to $10,000.

[7] In 2005, as a result of an application for judicial review brought by the applicant association, Dambrot J. found that the per diem rate was well below the minimum needed to provide the financial security required to ensure constitutionally mandated judicial independence. He ordered the Attorney General to set up a process that was independent, effective and objective to establish appropriate remuneration for deputy judges (Ontario, Deputy Judges Assn. v. Ontario (2005), 2005 42263 (ON SC), 78 O.R. (3d) 504, [2005] O.J. No. 4912 (S.C.J.)).

[8] This order was upheld and varied in part by the Court of Appeal in (2006), 2006 17250 (ON CA), 80 O.R. (3d) 481, [2006] O.J. No. 2057 (C.A.). The Attorney General of Ontario was required to create "an independent, effective and objective process for determining the [page92 ]judicial remuneration of Deputy Judges" within four months from the date of the decision (at para. 42).

[9] The Lieutenant Governor in Council then adopted Order-in- Council 1788/2006, which established a commission to determine the deputy judges' remuneration. The commission would consist of one commissioner selected by the association and the government with a three-year renewable term. The first term began January 1, 2007 and ended on June 30, 2009.

[10] The first commission was to enquire into and make recommendations regarding remuneration for the period January 1, 2005 to December 31, 2009. After the first report, the commission would make reports on remuneration every three years.

[11] Section 2 of the Order-in-Council set out the purpose of the commission:

The purpose of this Schedule is to establish a framework for the regulation of certain aspects of the relationship between the executive branch of the government and the deputy judges, including a process for the determination of deputy judges' compensation that is independent, effective and objective. It is intended that both the process of making the report and the report made by the Commission shall contribute to securing and maintaining the judicial independence of the deputy judges. Further this Schedule is intended to promote co-operation between the executive branch of the government and the judiciary and the efforts of both to develop a justice system which is both efficient and effective, while also maintaining the judicial independence of the deputy judges.

[12] Section 8 of the Order-in-Council set out criteria that were to guide the commission in making its recommendations:

1. the laws of Ontario
2. the need to provide fair and reasonable remuneration to deputy judges
3. the economic conditions in the province, as demonstrated by indicators such as the provincial inflation rate
4. recent Ontario public sector compensation trends
5. the growth or decline in per capita income
6. the financial policies and priorities of the Government of Ontario
7. the principles of compensation theory and practice in Canada.

The Commission Report

[13] On October 29, 2007, the Commissioner, Louisa M. Davie, submitted her report to the Minister of Government Services. She found that the process for the conduct of the inquiry set out in the Order-in-Council met the constitutional requirement of an independent, effective and objective process for determining deputy judges' remuneration. [page93 ]

[14] The Commissioner also concluded that the current per diem paid to deputy judges had fallen below a "minimum acceptable level" and compromised the financial security essential to the institutional independence of the Small Claims Court and, to a lesser degree, the individual independence of the judges (Report, pp. 8-9).

[15] She held that the overriding criteria to guide her were "the need to provide fair and reasonable remuneration to Deputy Judges" and "the laws of Ontario". She did not consider relevant to the first Commission "recent Ontario public sector compensation trends" or "the principles of compensation theory and practice in Canada" given the lack of any increase for 25 years (at p. 30).

[16] With respect to the criterion of "economic conditions of the province, as demonstrated by indicators such as the provincial inflation rate", she noted that while Ontario's economic outlook was somewhat uncertain, such indicators did not go so far as to point to the need for extraordinary restraint when addressing the circumstances of deputy judges. She noted that, based on the Consumer Price Index ("CPI")"the basket of goods and services" which the $232 per diem set in 1982 would buy would cost approximately $465 in 2007 as, over these 25 years, the average rate of inflation was 2.82 per cent (at p. 31).

[17] Ultimately, the Commissioner recommended the following per diem rates (at p. 46):

Effective January 1, 2005 $475 January 1, 2006 $525 January 1, 2007 $600 January 1, 2008 $675 January 1, 2009 $750

Earlier, in the executive summary of the report, she stated that she recommended these increases as "fair and reasonable" (at p. 2).

[18] In reaching her conclusions, the Commissioner rejected the argument of the deputy judges that their remuneration should be automatically equated with the salaries paid to full- time provincially appointed judges of the Small Claims Court. While she noted that these salaries were a relevant comparator, she discussed in some detail the differences between full-time judges and those receiving a per diem.

[19] The Commission also considered the remuneration paid to justices of the peace and appointees to regulatory and adjudicative agencies, noting that they provide a guidepost and set a [page94 ]"minimum benchmark below which the per diem of Deputy Judges should not fall" (at p. 45).

[20] In addition, the Commission recommended that as of December 31, 2009, the per diem should be adjusted at the rate set out in the Industrial Aggregate formula of the Framework Agreement applicable to provincially appointed judges of the Court of Justice. As well, deputy judges should be paid one full day's per diem to write reserve judgments for trials of one day or more, and a rate to be approved by the regional senior justice for reserves arising out of shorter trials.

[21] The Commissioner wrote (at pp. 46-47 of her Report):

Viewed strictly as a percentage differential increase from the current paltry $232 these per diem increases may appear to be extreme. These increases however must be viewed in a historical context in which there has not been an increase in 25 years. To some extent these per diem will restore the relative relationship of the per diem to the salary of a full time judge which existed for many years prior to the last increase in 1982.

. . . These recommended increases will result in a per diem commensurate with the office of a judge and the duties and responsibilities of the Deputy Judge, and from a financial perspective affords to Deputy Judges the respect and trust which a government should provide to the bench of a court which is integral to the administration of justice in Ontario.

The Government's Response

[22] The Minister of Government and Consumer Services responded on May 23, 2008 by way of a six-page letter to the Commissioner. He accepted the January 1, 2005 rate of $475 per day as a "fair and reasonable level of compensation" as of that date. However, the Minister did not accept the recommended rates for the years 2006 through 2009, which would have resulted in an average annual increase of 12.11 per cent. The Minister explained that the other increases were not warranted, in the opinion of the government [at p. 3]:

. . . once Deputy Judge per diem rates have been more than doubled to $475 in 2005, additional 10% to 15% year-over-year increases from 2006 to 2009 are not warranted to provide Deputy Judges with a fair and reasonable level of compensation, and do not sufficiently take into account the other criteria that the Commission is required to consider in developing its recommendations.

[23] The Minister supported the government's position by giving greater weight to several criteria that the Commission chose to discount. In particular, the government was of the view that the Commission did not give enough weight to provincial economic conditions such as the inflation rate, as well as the growth or decline in per capita income and recent Ontario public sector compensation trends. Therefore, the government concluded that [page95 ]the fair and reasonable per diem for each of the years 2006 through 2009 was the rate of $475 adjusted to take into account these factors. The rates adopted were as follows:

January 1, 2005 $475 January 1, 2006 $486 (2.25% increase) January 1, 2007 $498 (2.50% increase) January 1, 2008 $513 (3% increase) January 1, 2009 $528 (3% increase)

[24] The government also rejected the recommendation of an increase on December 31, 2009 in accordance with the Industrial Aggregate, as well as the recommendations for compensation for writing judgments. In this application for judicial review, the applicant has taken no issue with respect to these two determinations.

The Issue

[25] The issue in this case is whether the government, in its response to the Commission report with respect to the per diem rates, met the constitutional standard of rationality. The applicant raises three questions in relation to that requirement: (1) Did the government fail to properly consider and respond to the reasons for the recommendations by the Commission? (2) Did the government simply reiterate the submission it had made to the Commission and which had been rejected? (3) Did the government give legitimate reasons for rejecting the Commission's recommendations and varying them?

The Governing Principles

[26] The Supreme Court of Canada set out the constitutional principles governing the determination of judicial remuneration in 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), 2005 SCC 44, 85 O.R. (3d) 79, [2005] 2 S.C.R. 286, [2005] S.C.J. No. 47, 255 D.L.R. (4th) 513 ("Bodner").

[27] Judicial independence is a principle of the common law and a fundamental principle of the Canadian Constitution [page96 ](at para. 4). Three core characteristics of judicial independence have been identified: security of tenure, administrative independence and financial security (at para. 7).

[28] The Supreme Court has held that judicial independence has both an individual and an institutional dimension, explaining that

[T]he dimensions of judicial independence indicate which entity -- the individual judge or the court or tribunal to which he or she belongs -- is protected by a particular core characteristic. (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, at para. 119 ("PEI Reference"))

[29] In the present application, the core characteristic of financial security is at issue. Financial security has both an individual and an institutional dimension (PEI Reference, at para. 121). The institutional or collective dimension of financial security requires that [at para. 131]

. . . the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse.

[30] From an institutional dimension, financial security has three components: judicial salaries can be changed only by recourse to an independent compensation commission; no negotiations are permitted between the judiciary and government; and salaries may not fall below a minimum level (PEI Reference, at paras. 133-35).

[31] The Supreme Court held that the Constitution requires compensation commissions to be independent, objective and effective (Bodner, at para. 16). The commission's work must have a "meaningful effect" on the process for determining judicial compensation (at para. 18). However, that does not require the commission's report to be binding"as decisions about the allocation of public resources belong to legislatures and to the executive" (at para. 20).

[32] A government can depart from the commission's recommendations, provided it justifies the departure with "rational reasons" (at para. 21). The government is required to respond to the commission's recommendations and give legitimate reasons for departing from them (at para. 24), and the reasons must be based on a factual foundation and sound reasoning (at para. 25).

[33] On an application for judicial review of a government's response, the standard of review is rationality alone (at para. 29). The Supreme Court of Canada has set out a three-step process [page97 ]to be applied by a court in judicial review of the government's response (at para. 31): (1) Has the government articulated a legitimate reason for departing from the commission's recommendations? (2) Do the government's reasons rely upon a reasonable factual foundation? (3) Viewed globally, 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?

[34] When reviewing the reasonableness and sufficiency of the factual foundation relied upon by the government, the court must determine "whether it is rational for the government to rely on the stated facts or circumstances to justify its response" (at para. 37). This is a deferential review that respects the government's "unique position and accumulated expertise and its constitutional responsibility for management of the province's financial affairs" (at para. 30).

Analysis

[35] The applicant submits that the government failed to meet the constitutional requirements for the following reasons: (1) It misinterpreted and failed to address the key findings of the Commission that the ultimate per diem of $750 effective January 1, 2009 was constitutionally appropriate and instead imposed a rate structure with a base year of 2005 and annual increases based on non-judicial comparators that had been rejected by the Commission. (2) It failed to address the key judicial comparators which were accepted by the Commission, such as the full-time provincial judges sitting in Small Claims Court and the justices of the peace, and instead substituted a heavy reliance on non-judicial and public service comparators without adequate justification and contrary to the relevant case law. (3) It failed to address the constitutional requirements of judicial compensation as found by the Commission.

Issue no. 1: Has the government articulated a legitimate reason for departing from the Commission's recommendations?

[36] According to the Bodner analysis, a reviewing court must first ask whether the government articulated a legitimate reason for departing from the Commission's recommendations. The applicant argues that the government did not do so, because it [page98 ]accepted the per diem rate proposed for January 1, 2005 and then increased it by annual percentages consistent with the rate of inflation and other public sector compensation increases. In doing so, the government is said to have ignored the Commission's conclusion that the rate of $750 effective January 1, 2009 would provide a fair and reasonable rate.

[37] There is a major dispute between the parties as to the content of the Commission's recommendations. The applicant concludes that a fair and reasonable rate of compensation will be reached only after the 2009 rate comes into effect, relying on the Commissioner's recommendation of the "increases" as fair and reasonable and her statement (at p. 47)"these recommended increases will result in a per diem commensurate with the office of a judge and the duties and responsibilities of the Deputy Judge . . ." (emphasis added).

[38] The government takes the position that the Commission found the January 1, 2005 rate of $475 to be a fair and reasonable rate, having stated in its response"the government accepts the Commission's finding that this recommended increase [to $475 as of January 1, 2005] results in a fair and reasonable level of compensation for Deputy Judges as of January 1, 2005 . . .". While the government accepted that figure, it disagreed with the size of the subsequent annual increases because it put weight on factors that the Commission refused to consider.

[39] The task of this court is to determine whether the government gave a legitimate reason for departing from the Commission's recommendations -- here, the rates from 2006 through 2009, resulting in a rate of $750 per day. In approaching that task, I am mindful of the Supreme Court's description of the appropriate inquiry set out in Bodner, at para. 25:

The government can reject or vary the commission's recommendations, provided that legitimate reasons are given. Reasons that are complete and that deal with the commission's recommendations in a meaningful way will meet the standard of rationality. Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission's recommendations have been taken into account and must be based on facts and sound reasoning. They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation. The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately. They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence. [page99 ]

[40] In my view, the government has given legitimate reasons for varying the Commission's recommendations. There is a basis in the Commission report for the government's conclusion that $475 is a fair and reasonable rate as of 2005, even if the Commission's recommendation appeared to present the increases over five years as "fair and reasonable". The Commissioner was to recommend rates for each of the years in question and $475 was the per diem she had recommended effective January 1, 2005. The government accepted that figure, noting that it reflected the criteria that the Commission was required to consider.

[41] While the applicant argues that the rate of remuneration is not reasonable until the 2009 per diem is reached, the Commissioner gave no explanation as to why she recommended $475 in 2005 and then stepped up the rates significantly in subsequent years, with average annual increases of 12.11 per cent. There is no discussion, for example, of a need to implement an increase gradually because of the government's ability to pay. Indeed, the Commission rejected the argument that economic conditions in the province necessitated restraint in the implementation of pay increases to deputy judges in the face of a lack of increase for 25 years.

[42] Having accepted that $475 was a fair and reasonable per diem in 2005, the government gave detailed reasons explaining why it rejected the proposed increases for 2006 through 2009 as excessive. In determining the appropriate increases for the following years, the government explained that it gave weight to factors which the Commission chose not to consider. According to Bodner, the government can reweigh factors and place a different emphasis on evidence before the Commission, as long as it gives the Commission's recommendations serious consideration and its reasons are supported by a reasonable factual foundation (at paras. 39 and 165).

[43] In the government's view, once the initial 105 per cent increase had been accepted, consideration must be given to economic conditions in the province, the growth or decline in per capita income and recent trends in Ontario public sector compensation. The government's proposed increases for 2006 through 2009 maintained the value of the 2005 increase over the period of the Commission mandate and were consistent with recent Ontario public sector compensation trends, Ontario's economic conditions and the growth in per capita income. The average per diem increase would be 2.69 per cent annually.

[44] The government observed that the average rate of inflation from 1982 to 2007 was 2.82 per cent and noted that the Commission appeared to have taken this factor into consideration in [page100] making the 2005 recommendation. The government observed that the rate of inflation was not, however, reflected in the recommended increases from 2006 through 2009, which significantly exceeded the CPI, the Industrial Aggregate Index ("IAI"), the increase in Ontario's Gross Domestic Product ("GDP") and wage increases obtained by others in the public sector.

[45] In reaching its conclusions, the government took note of the findings of the Commission that neither recruitment nor retention of deputy judges was a problem. It also agreed with the Commission finding that the per diem is not intended to be a salary or to be a significant source of income for the lawyers who act as deputy judges. For the most part, deputy judges sit on average approximately 1.5 days per month.

[46] There is no indication that the government's response was based on "political or discriminatory" considerations or any improper motive to reduce the compensation of deputy judges below a basic minimum or to single them out for negative treatment.

[47] The applicant submits that the government misinterpreted the Commission's mandate, which was to set remuneration for January 1, 2007 to January 1, 2009 with a separate mandate for 2005 and 2006. However, the wording of s. 5(2) of the Order-in- Council makes it clear that the Commission's mandate was to make recommendations for a single period covering 2005 through 2009. That is how the Commissioner approached her task: she did not make recommendations covering two separate periods, nor did she set out the January 1, 2009 figure as her starting point and work backwards, as the applicant suggests. Throughout the report, the recommended per diems start with the year 2005 and proceed to 2009.

[48] The applicant also argues that the government failed to consider the key judicial comparators accepted by the Commission, namely, provincial court judges working full-time in the Small Claims Court and justices of the peace. However, in its response, the government made reference to the rate of increases awarded to provincial court judges and justices of the peace.

[49] Moreover, the Commission rejected a formulaic link between the per diem rates of deputy judges and the salaries of full-time judges. At its highest, the Commissioner stated that salaries of full-time judges and justices of the peace were relevant considerations informing her recommendations, and the per diems awarded would restore the historical relationship "to some extent".

[50] The applicant submits that the government inappropriately considered public sector wage increases obtained by unionized public servants, as deputy judges are not employees. However, the Supreme Court of Canada has held that comparisons [page101] with public servants may be legitimate provided that the comparison is explained (Bodner, at para. 26).

[51] The government response does not treat deputy judges as employees. Rather, it used the annual increases negotiated with the Ontario Public Service Employees Union as one measure of the level of increase consistent with public sector compensation trends so as to maintain the 2005 per diem rate at a fair and reasonable level through the course of the Commission's mandate.

[52] Moreover, the comparison to unionized public servants was only one of the factors considered in determining the appropriate annual increases. The government also considered annual increases awarded to other members of the judiciary by Remuneration Commissions. As well, it considered broader indicators of inflation.

[53] Overall, the government's response does address the Commission's recommendations and does explain what it accepted and why it departed from some recommendations. The reasons are detailed and supported by factual material.

[54] This is not a case where the government has simply ignored the Commission's recommendations and reiterated its original submissions. Before the Commission, the government advocated a 30 per cent increase over the course of the Commission's mandate, resulting in a per diem rate of $301.60 in 2009. In its response, it accepted the recommended increase as of January 1, 2005 -- an increase of 105 per cent. Although the government rejected the recommended increases for the following years, the amounts that it determined appropriate resulted in an overall increase of almost 128 per cent.

[55] In summary, the government has articulated legitimate reasons for departing from the Commission's recommendations.

Issue no. 2: Do the government's reasons rely on a reasonable factual foundation?

[56] At the second step of the analysis of the government's response, the reviewing court must determine whether the government's reasons rely on a reasonable factual foundation. This inquiry asks both whether the government indicated the factual basis upon which it relied and the rationality of this reliance.

[57] The government referred to remuneration increases obtained by provincial court judges and justices of the peace, wage increases obtained by public sector bargaining groups, wage increases in public and private sector collective bargaining, the growth in Ontario's real GDP, the change in Ontario's CPI and increases in the Ontario IAI. [page102]

[58] The applicant does not dispute that the government indicated the factual basis upon which it relied. Nor does it claim that the data relied upon was inaccurate. Rather, it argues that the government impermissibly relies on data rejected by the Commission and on mere forecasts for 2008 and 2009, which were not put before the Commission. Moreover, the Commission rejected these types of economic indicators. As well, the Commission rejected the justices of the peace as a comparator.

[59] The government relied on economic and labour relations data that were before the Commission. It was entitled to do so, as the Commission did not address the significance of data relating to economic conditions and compensation trends (Bodner, at para. 74). As well, the government reasonably relied on forecasts in determining its position when historical data was not available.

[60] In this application for judicial review, the government also relied on information about economic conditions arising since its response in May 2008, including an economic outlook from the fall of 2008 and the provincial budget in March 2009. The Supreme Court of Canada stated in Bodner that "[i]f a new fact or circumstance arises after the release of the commission's report, the government may rely on that fact or circumstance in its reasons for varying the commission's recommendations" (at para. 26). It can also provide more detailed information with regard to the factual foundation in a court proceeding to review its response (at para. 27).

[61] The role of this court is to review the rationality of the government's response to the Commission in light of information relied on by the government. The material related to the global economic crisis and the ensuing economic downturn in the fall of 2008 and spring of 2009 was not relied on by the government in making its response. It did not make reference to its inability to pay increases in its response. Therefore, in my view, it is not appropriate for this court to give any consideration to the new material.

[62] Nevertheless, I am satisfied that there was a reasonable factual foundation underlying the government's reasons, even without this material.

Issue no. 3: Did the government's response respect the Commission process?

[63] At this stage of the analysis, the government's response is to be "viewed globally and with deference" in order to determine whether the purposes of the commission process have been achieved (Bodner, at paras. 83 and 133). [page103]

[64] The participation by the Ontario government in the proceedings before the Commission was described by the Commissioner as "effective" and "efficient". It is evident that the Commission's report had a meaningful impact on the government's determination of deputy judge compensation, given the significant increase accepted, which went significantly beyond the government's proposal.

[65] The government provided a detailed response to the Commission's report and gave legitimate reasons when it departed from the recommendations. In my view, the government's response, viewed globally, respected the Commission process and depoliticized the relationship of the executive/legislative branches and the judicial branch.

Conclusion

[66] As the response of the government met the constitutional standard of rationality, the application for judicial review is dismissed.

[67] If the parties cannot agree on costs, they may make brief written submissions through the Divisional Court office.

Application dismissed.