CITATION: Association of Justices of the Peace of Ontario v. Her Majesty the Queen in Right of the Province of Ontario, 2014 ONSC 6130
DIVISIONAL COURT FILE NO.: 4/13
DATE: 20141023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEITCH, SWINTON AND NORDHEIMER JJ.
B E T W E E N:
ASSOCIATION OF JUSTICES OF THE PEACE OF ONTARIO
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Respondent
James C. Morton for the Applicant
Josh Hunter and Sarah Kraicer for the Respondent
HEARD AT TORONTO: October 21, 2014
Swinton J.:
Overview
[1] The Association of Justices of the Peace of Ontario (“the applicant”) seeks judicial review of the Ontario government’s rejection of the Second Supplementary Report of the Fifth Triennial Justice of the Peace Remuneration Commission (“the Commission”). The applicant argues that the reasons given for rejecting the report do not meet the standard of rationality.
[2] For the reasons that follow, I would dismiss the application for judicial review, as the government’s explanation for its decision was a rational one, supported by legitimate arguments.
Factual Background
[3] The Commission was established to determine the remuneration for Justices of the Peace for the period April 1, 2008 through March 31, 2011. In December 2008, it made a recommendation, based on a joint submission of the applicant and the government, that there should be ongoing automatic salary indexing for Justices of the Peace based on the Industrial Aggregate Index (“IAI”) for Ontario. The IAI is determined by Statistics Canada. At the time of the Commission’s recommendation, the IAI would have produced a salary increase of 2.7% on April 1, 2008.
[4] In June 2009, the government agreed to and implemented the Commission’s December recommendation regarding the use of the IAI, which took effect as O. Reg. 233/09 on June 19, 2009. The 2008 salary increase was implemented using the 2.7% rate for the IAI.
[5] However, beginning on March 31, 2009, Statistics Canada had amended its method for calculating the IAI and revised the supporting statistics retroactively to 2001. Using the revised IAI for 2008, the salary increase for Justices of the Peace would have been 3.8%. The applicant’s legal counsel advised the government on July 2, 2009 that the April 2008 IAI adjustment should have been 3.8% in accordance with the revised data from Statistics Canada.
[6] On August 18, 2010, the government made a referral to the Commission pursuant to s. 5(1) of O. Reg. 391/00, which allows the Chair of the Management Board of Cabinet to refer any matter respecting the remuneration of Justices of the Peace to the Commission. The Commission must conduct an inquiry into the matter and submit a report containing its recommendation. The letter of referral asked “what IAI rate should be used for determining the April 1, 2008, increase”.
[7] The Commission issued a Second Supplementary Report on May 2, 2011 in which the majority recommended a compromise increase of 3.3%, while the minority recommended the 2.7% figure. In the words of the majority (at para. 65), “we hereby recommend that the IAI (Ontario) increase effective April 1, 2008 for Justices be deemed to be 3.3%” (emphasis added).
[8] On November 20, 2012, the Minister of Government Services (“the Minister”) wrote a five-page letter to the Commission explaining why the government was rejecting the recommendation of the majority and accepting the 2.7% IAI rate recommended by the minority. The Minister gave two reasons for doing so: first, the majority failed to answer the question referred to the Commission; and second, the majority failed to consider relevant criteria that it was mandated to consider by s. 7 of O. Reg. 319/00.
[9] The applicant then launched this application for judicial review to challenge the government’s decision with respect to the Second Supplementary Report.
The Standard of Review
[10] The parties agree that the standard of review is “simple rationality” as outlined in the three stage analysis enunciated in Provincial Court Judges Assn. of New Brunswick v. New Brunswick, 2005 SCC 44, [2005] 2 S.C.R. 286 (“Bodner”) at para. 31:
Has the government articulated a legitimate reason for departing from the commission’s recommendations?
Do the government’s reasons rely upon a reasonable factual foundation? and
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?
Analysis
[11] The applicant argues that the government failed to provide legitimate reasons for rejecting the Commission’s recommendation and, therefore, the decision is not rational and must be set aside.
[12] The government’s first reason for rejecting the majority recommendation was the failure of the majority to address the question referred to the Commission – namely, what version of the IAI should be used to determine the 2008 salary increase. The applicant argues that the majority did address the question that was referred, a general question about “what” the IAI should be.
[13] In my view, this argument is without merit. The Commission was to determine what IAI increase should be used to calculate the 2008 salary increase. The IAI is a rate determined by Statistics Canada. Accordingly, there were two possible IAI rates to be considered in replying to the referral: 2.7% based on the earlier methodology used by Statistics Canada or 3.8% based on the revised methodology adopted in 2009. Instead of recommending one of these two rates, the majority chose a compromise figure that should be “deemed” the IAI rate for 2008. However, no such IAI rate had ever been adopted by Statistics Canada.
[14] In my view, the fact that the majority of the Commission did not answer the question put to it is a legitimate reason for the government to reject the majority’s recommendation.
[15] However, the government went on to give detailed reasons why the recommended 3.3% was not acceptable to it and why it preferred the minority recommendation of 2.7%. The Minister, in his letter, stated that the majority “failed” to consider the objective criteria found in s. 7 of O. Reg. 319/00. Section 7 requires the Commission, in developing recommendations under ss. 4(1) or 5(1) to consider the following criteria:
The laws of Ontario.
The need to provide fair and reasonable remuneration to justices of the peace.
The economic conditions in the province, as demonstrated by indicators such as the provincial inflation rate.
Recent Ontario public sector compensation trends.
The growth or decline in per capita income.
The financial policies and priorities of the Government of Ontario.
The principles of compensation theory and practice in Canada.
The parameters set by any joint working committees established by the parties.
Any other factor the Commission considers relevant.
[16] The Minister’s statement that the majority failed to consider the relevant criteria is mistaken. The majority did, in fact, make reference to a number of the criteria in s. 7.
[17] However, the Minister did not stop there. The letter goes on to explain in detail why the government disagreed with the majority’s weighing of some of the criteria in s. 7 of the regulation and its failure to deal with others. For example, the government disagreed with the majority’s treatment of the “fair and reasonable remuneration” criterion. In particular, it noted that one reason for adopting the automatic IAI adjustment was to treat Justices of the Peace like judges of the Ontario Court of Justice, whose salaries are adjusted annually in accordance with the IAI (Canada). The 2008 increase for those judges was based on the 2008 version of the IAI data before it was revised, and their salaries were not adjusted because of the Statistics Canada change in methodology in 2009. According to the Minister, the majority’s recommendation would result in “significant inconsistency between these two processes that were intended to mirror each other”.
[18] The government also noted that the majority failed to consider the criterion of “laws of Ontario”. Subsection 2(3) of O. Reg. 247/94 requires the IAI to be determined from data published by Statistics Canada under the Statistics Act. However, the majority’s 3.3% figure was not based on a Statistics Canada determination.
[19] The government also noted that the majority gave little or no consideration to the factor of economic conditions in the province, which had declined since the joint submission was made. As well, the majority failed to consider that the rate awarded exceeded the 2.3% inflation rate in Ontario.
[20] The government also concluded that the majority failed to give sufficient consideration to the principles of compensation theory and practice in Canada and, in particular, certainty, reliability and timeliness.
[21] The government then set out the reasons why it preferred the recommendation of the minority: the minority addressed the question referred to the Commission, and his recommendation better reflected the criteria that the Commission was to consider.
[22] In considering the rationality of the government’s decision to reject the majority recommendation, the reviewing court must ask whether the government has responded to the Commission’s recommendations “with legitimate reasons that have a reasonable factual foundation.” The government may reweigh the factors that have been considered by the Commission, provided it gives legitimate reasons for doing so (Bodnar at para. 39).
[23] In the present case, the government of Ontario has met the standard of rationality and has made its decision in a manner that respects the Commission process. The government went back to the Commission to obtain the Commission’s views on the appropriate IAI rate. It then gave detailed and legitimate reasons why it rejected the majority recommendation and preferred the minority recommendation.
[24] Accordingly, the application for judicial review is dismissed. Costs to the respondent are fixed at $6,000 all inclusive, an amount agreed upon by the parties.
Swinton J.
Leitch J.
Nordheimer J.
Released: October 23, 2014
CITATION: Association of Justices of the Peace of Ontario v. Her Majesty the Queen in Right of the Province of Ontario, 2014 ONSC 6130
DIVISIONAL COURT FILE NO.: 4/13
DATE: 20141023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
leitch, swinton and nordheimer jj.
B E T W E E N:
ASSOCIATION OF JUSTICES OF THE PEACE OF ONTARIO
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: October 23, 2014