Court File and Parties

Citation: Association of Justices of the Peace of Ontario v. Ontario, 2016 ONSC 2187 Divisional Court File No.: 130/16 Date: 2016-04-01

Ontario Superior Court of Justice Divisional Court

Between: The Association of Justices of the Peace of Ontario/L’Association Des Juges de Paix de L’Ontario Applicant

– and –

Her Majesty the Queen in Right of the Province of Ontario Respondent

Counsel: J.T. Curry, Scott Rollwagen and Sam Johansen, for the Applicant Josh Hunter, Sarah Kraicer and Rachel Weiner, for the Respondent

Heard at Toronto: March 30, 2016

Before: Stewart J.

Endorsement

[1] The Association of Justices of the Peace of Ontario/ L’Association des Juges de paix de l’Ontario (“AJPO”) has brought this motion on an urgent basis and seeks an order staying the implementation of certain changes to pre-retirement and post-retirement benefits and insured benefits available to Justices of the Peace in Ontario.

[2] This motion is brought in the context of a pending application for judicial review of the Response delivered by the Respondent (“Ontario”) to the recommendations of the Sixth Justices of the Peace Remuneration Commission (“Sixth Commission”), and pursuant to s.4 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. No issue is taken with the jurisdiction of this Court to grant the relief sought, providing the test for same has been met.

[3] There has been some skirmishing between the parties as to whether to obtain the relief sought there exists a need in these circumstances for AJPO to establish that there has been “a deliberate flouting of established law by government authority” (see: Aroland First Nation v. Ontario, [1996] O.J. No. 557). This proposition was rejected by Lederer, J. on a motion to stay in Amalorpavanathan v. Ontario (Minister of Health Care and Long-term Care), [2013] O.J. No. 3513 but not necessarily endorsed by the full panel of the Divisional Court on appeal (2013 ONSC 5415, [2013] O.J. No. 3846). Nevertheless, the test for a stay motion addressed in argument by both sides was the long-established one laid down by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: is there a serious issue to be tried, will the applicant suffer irreparable harm if the stay is not granted, and if so, where does the balance of convenience lie?

[4] Having said that, this Court is cognizant of the need to consider and weigh the RJR-Macdonald Inc. factors with due regard to the interference with the Respondent’s mandate to govern that a stay might present.

Facts

[5] The Sixth Commission was composed of Linda R. Rothstein, Roy C. Filion, and Chair, the Honourable Patrick J. LeSage.

[6] The mandate of the Sixth Commission was to review submissions from AJPO and Ontario and to make recommendations for the remuneration of Ontario’s Justices of the Peace for the four-year period from April 1, 2011 to March 31, 2015. I note that the period involved is retrospective.

[7] After hearings had been held, and somewhat late in the process, Ontario proposed the implementation of certain changes including restrictions to benefits and insured benefits available to Justices of the Peace that would affect them on a prospective basis. Ontario asked the Sixth Commission to consider the proposed changes for inclusion in its recommendations. Ontario expressly acknowledged that it could not implement these changes without the input of an independent Commission in order to respect the constitutional requirement for the independence of Justices of the Peace. The parties agree that benefits are clearly among the components of compensation which must form part of the Commission process.

[8] AJPO argued against the proposed changes before the Sixth Commission.

[9] The Report of the Sixth Commission (the “Report”) was delivered on March 9, 2015. The Sixth Commission declined to make a recommendation concerning the Ontario’s proposed benefits changes and deferred them for consideration by the Seventh Commission (which reportedly has since been established). The Sixth Commission concluded that it had not been sufficiently informed by the material submitted to make any meaningful recommendation on this complex issue.

[10] In that regard, in its Report the Sixth Commission stated:

1. The task of this Commission is to make recommendations for the remuneration (salaries, pensions, benefits and related issues) of Ontario’s Justices of the Peace for the four-year period from April 1, 2011 to March 31, 2015. Submissions were received and hearings held intermittently from October 2013 to mid-January 2014. In March 2014, prior to our Report being completed, the Government requested we receive further submissions regarding new issues that had arisen (in February) relating to changes to Health Benefits including post-retirement Benefits connected to Pensions. This request flowed from a proposed agreement between Government and certain of their employee bargain in units, to changes in what is referred to as the MCP Plan. That Plan is currently aligned to Benefits received by Ontario Justices of the Peace. The Government is seeking the views of the Commission regarding making those changes, or some of them, to the Justices of the Peace Benefit package.

2. The Association for the Justices of the Peace of Ontario (“AJPO”) opposed the Government’s proposed changes to its benefits plan. It also submitted that if the Commission reconvened to deal with the benefits issue, it issue an Interim Report dealing with salary issues. In late April, after hearing from the Parties, the Commission agreed to convene the hearings without issuing an Interim Report. Submissions and Reply Submissions were thereafter submitted in writing (at the Panel’s request). The last submissions were received on August 25, 2014. Using the information provided us by the Parties including Justice of the Peace Conacher, we attempted to arrive at a logical informed package of recommendations regarding the “Benefits Package”. After much consideration we concluded that we were not able so to do. A further meeting was held in early November with counsel for the parties. At that meeting, the Panel urged them to make further efforts to explore and identify those areas where there could be consensus and specific rationale as to where and why consensus could not be achieved on the numerous proposed changes. We encouraged the parties to engage a facilitator to assist them in their discussions. We urged the parties to better define and hopefully narrow the issues. Both parties agreed to make further attempts.

3. By letter dated December 15, 2014, counsel for the Association advised:

Unfortunately and despite significant efforts, the Parties were unable to come to a joint position regarding the issues before the facilitator.

That letter re-iterated a much earlier position of the Association that the March 2014 Benefit Package should be deferred to the next (7th) Commission and in the interim the status quo ought to remain.

4. In the absence of any such agreement and given the significant time that has passed since our hearings were completed we have reluctantly concluded that it would be unwise and injudicious to report on the Benefits/Pension issues. The issues are both complex and important, and would require re-opening the oral hearing which would unduly delay the release of our Report.

[11] In its Recommendations, the Sixth Commission included the following:

Pensions & Benefits

As indicated in Paragraph 4, we decline to make recommendations on the Government’s proposed changes to the Justices of the Peace Benefit Plan (which includes post retirement benefits and are therefore part of the Pension, or equivalent Benefits). We also recommend that the next Commission be activated no later than June of 2016 so that a more timely Report may be concluded during the course of the subject period.

[12] Ontario delivered its Response to the Report on December 7, 2015, only two days before the expiry of the nine month period in which it was required to do so pursuant to the Commission Regulation. Despite having previously expressly acknowledged that it could not implement the benefits changes without having submitted them to an independent Commission, Ontario indicated in its Response that it had nevertheless and unilaterally decided to do so, effective April 1, 2016.

[13] AJPO argues that Ontario’s decision to circumvent the Commission process is inconsistent with the body of jurisprudence of the Supreme Court of Canada on the process necessary to secure the independence of judicial officers. Ontario acknowledged that need for a prior Commission review, and its decision to restrict the benefits is a serious interference with the constitutionally-protected independence of Justices of the Peace.

[14] Ontario takes the position that he events described above adequately constitute the review required to comply with its constitutional obligations.

Serious Issue

[15] In assessing whether interim relief is warranted, the Court must satisfy itself that there exists a serious issue to be tried or, in this case, to be addressed on judicial review.

[16] The threshold for establishing the existence of a serious issue to be tried is a low one. A prolonged examination of the merits is neither necessary nor desirable.

[17] AJPO submits that it has established a serious issue to be tried: has Ontario acted in contravention of its constitutional obligations in proceeding to enact leglislation affecting benefits and pensions of Justices of the Peace in these circumstances?

[18] In Reference re Remuneration of Judges of the Provincial Court (P.E.I), [1997] 3 S.C.R.3, the Supreme Court of Canada held that judicial remuneration can be maintained or changed only by recourse to an independent Commission process and, in turn, that negotiations were not permitted between the judiciary and the government. This process is supposed to play a meaningful role as an “institutional sieve” – a structural separation between the government and the judiciary.

[19] In Provincial Court Judges’ Association of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conference des juges du Quebec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 SCR 286, the Supreme Court of Canada again confirmed that the Commission process is neither adjudicative interest arbitration nor judicial decision making. It is an institution that must be interposed between the government and the judiciary. The process is required regardless of any agreements or common positions put forward by the parties, as the Commission’s role is to fulfil its vital constitutional mandate and not to adjudicate in the more familiar sense of the term.

[20] The applicable principles governing government responses to judicial compensation Commission reports have also been set out in a series of decisions of the Supreme Court of Canada which has stressed that the work of judicial compensation Commissions must be given “meaningful effect”. This does not mean that the recommendations of Commissions must be binding, as they are not binding absent specific legislation requiring them to be so. Rather, governments are permitted to depart from recommendations in a report, but only for a “rational” reason. A government’s response “must be complete, must respond to the recommendations themselves and must not simply reiterate earlier submissions that were made to and substantively addressed by the commission” (Bodner, supra). I understand that statement to mean that a “reason” may be found to not be adequately “rational” as required by the constitutional process and therefore a government’s response may not pass constitutional muster.

[21] The court on judicial review must weigh the whole of the process and the response in order to determine whether they demonstrate the government has engaged in a meaningful way with the process of the Commission and has given a rational answer to its recommendations. Although it may disagree with certain aspects of the process followed by the government or with some particular responses or lack of answer, the court must weigh and assess the government’s participation in the process and its response in order to determine whether the response, viewed in its entirety, is impermissibly flawed even after the proper degree of deference is shown to the government’s opinion on the issues.

[22] In the present circumstances, AJPO argues that there was no meaningful engagement at all with the Sixth Commission on this issue. Ontario simply proceeded to implement its proposed restrictions to benefits and insured benefits without any input from the Sixth Commission which had decided that it had been given an inadequate opportunity to review the issues raised.

[23] In its Response, Ontario said it elected to proceed in spite of the Sixth Commission’s recommendation to defer the issue to the Seventh Commission because:

(a) “The Majority did not address the effects of a failure to make a recommendation, including the financial and administrative implications of not applying the changes…until the next Commission Reports”; and

(b) “During the fifth Commission, the parties supported a harmonization of the benefits … on the understanding that this conversion would apply to enhancements, reductions and other changes in benefit coverage.”

[24] AJPO will argue on the judicial review that this aspect of Ontario’s Response will support its argument that the Response does not satisfy a rationality test. The Fifth Commission’s recommendations on harmonization of benefits, although useful as historical context, are not the recommendations that apply or require response to this Sixth Commission process. The “financial and administrative implications” which Ontario looks to as justification for its actions include cost savings produced by reduced benefits and administrative efficiency and cost savings derived from lumping in Justices of the Peace with a larger number of Ontario civil servants for administrative ease. These are characterized by AJPO as being not rational reasons.

[25] There is merit to AJPO’s arguments. In my opinion, AJPO has raised a serious issue for determination on judicial review. Accordingly, the first branch of the test has been met.

Irreparable Harm

[26] When conducting an assessment of irreparable harm, the Court is to consider whether a refusal to grant the interim relief sought might so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits was in favour of the applicants. “Irreparable” refers to the nature of the harm, not its magnitude.

[27] AJPO has endeavoured to articulate the irreparable harm issue on a higher level than the potential loss of benefits to some of its members for a comparatively brief period of time. It is recognized as well that some of the benefits to be changed are enhancements, not reductions.

[28] AJPO argues that the harm that would be caused to Justices of the Peace by Ontario’s actions in this case is, by its very nature, unquantifiable and irreparable. It submits that Ontario seeks to unilaterally adjust the benefits available to Justices of the Peace without any input from a constitutionally-mandated process. Should interim relief not be granted, Ontario’s actions not only would have an irreparable impact on the interests of members of AJPO, it would conflict with Ontario’s constitutional obligations and thereby threaten judicial independence.

[29] Ontario submits that this is only a matter of dollars and cents. It would be simple to refund retroactively any out-of-pocket expenses or losses incurred by individual Justices of the Peace should it not prevail on judicial review. Oddly, it also argues that the burden imposed on it to recover over-payments by the granting of a stay would be an administrative nightmare.

[30] I prefer the emphasis placed by AJPO on the overriding principle at stake and agree with it. However, even if the analysis is carried out on a more commonplace basis, it is evident that some Justices of the Peace, probably the older ones, will be adversely affected by the changes in ways that cannot be easily remedied. The cutting of health-related benefits, in particular – even for a short time- would cause harm that would be irreparable to those entitled to receive them.

[31] Accordingly, I conclude that APJO has demonstrated that irreparable harm will occur if the stay is not granted.

Balance of Convenience

[32] Having found a serious issue to be tried and that irreparable harm would be caused should interim relief not be granted, it is now necessary to determine which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits. Several of the considerations taken into account in determining the issue of irreparable harm also apply to this branch of the test.

[33] I further agree with AJPO that, in cases where constitutional principles are at issue, the public interest is a special factor which must be considered in assessing where the balance of convenience lies. The government does not have a monopoly on the public interest. Public interest can include the concerns of society generally as well as particular interests of identifiable groups or the participants above.

[34] AJPO submits that the remedy it seeks in this case will operate only to preserve the status quo until the resolution of its application for judicial review in which these issues will be canvassed before a full panel of the Court. With the co-operation of all involved, the period of time that the status quo will be maintained will be a matter of a few months at most. I am not persuaded that it will be so very difficult for Ontario to re-calibrate if it is successful on the judicial review.

[35] As a result, I am of the view that the balance of convenience favours AJPO.

Conclusion

[36] For these reasons, I am of the opinion that the interim stay sought by AJPO should be granted.

[37] An interim order shall go suspending the operation of Regulation 56/16 insofar as it purports to implement changes to benefits and insured benefits available to Justices of the Peace and, to the extent required to give effect to this order, suspending the effect of Orders-in-Council insofar as they may affect Justices of the Peace in this same regard.

[38] The parties have agreed that the hearing of the judicial review application should be expedited to the greatest extent possible. I agree. Counsel for the parties are to attend before Sachs, J. or her delegate to obtain the earliest dates for the judicial review hearing that will accommodate their preparation requirements and the schedule of the Divisional Court.

Costs

[39] The parties have agreed that neither side will seek costs of this motion.

Stewart J.

Released: April 1, 2016