The Masters' Association of Ontario et al. v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Masters' Association of Ontario v. Ontario]

105 O.R. (3d) 196

2011 ONCA 243

Court of Appeal for Ontario,

MacPherson, Gillese and LaForme JJ.A.

March 30, 2011

Courts -- Masters -- Independence -- Remuneration -- Salaries of Case Management Masters linked in perpetuity to SMG3 classification for senior public servants at Assistant Deputy Minister level -- Legislative provisions relating to remuneration of Case Management Masters violating principle of judicial independence due to absence of independent body to consider representations and to make recommendations to government about remuneration -- Application judge not erring in granting simple declaration of invalidity and giving government 12 months to make changes rather than granting remedies of severance and reading in to give Case Management Masters and traditional Masters same level of judicial independence and salary.

The salary of traditional Masters is pegged by law to the salary of provincial court judges while, under Order-in-Council 458/2003, the salary of Case Management Masters is linked in perpetuity to the SMG3 classification for senior public servants at the Assistant Deputy Minister level. The application judge held that the provisions relating to tenure and remuneration of Case Management Masters violate the principle of judicial independence and are of no force or effect. He suspended the declaration of invalidity for 12 months to allow the government to make changes. The Crown appealed the remuneration-related aspects of the judgment. The respondents cross-appealed, arguing that remedies of severance and reading in should be applied to give Case Management Masters and traditional Masters the same level of judicial independence, salary and benefits.

Held, the appeal and cross-appeal should be dismissed. [page197]

The constitutional principle of judicial independence requires a "special process" for dealing with the question of judicial remuneration. There must be an independent body involved in, at a minimum, making recommendations to governments about judicial remuneration. The application judge erred in concluding that the process for selecting the SMG3 comparator flowed from the sole discretion of the executive branch. In fact, the choice of comparator was a joint decision and was the epitome of objectivity at the time. The application judge did not err in finding that the absence of an independent body to consider representations and to make recommendations to the government about the remuneration of Case Management Masters violated the principle of judicial independence.

The application judge declared s. 53(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 invalid. There was nothing wrong with that generic provision. The constitutional fault lay in Order-in-Council 458/2003. It was that law which should be declared invalid.

The application judge did not err in granting a simple declaration of invalidity. At the request of the Crown, the suspension of the declaration of invalidity was extended for a further 12 months.

APPEAL AND CROSS-APPEAL from the judgment of Platana J. (2010), 2010 ONSC 3714, 103 O.R. (3d) 90, [2010] O.J. No. 3318 (S.C.J.) declaring provisions relating to the remuneration of Case Management Masters to be of no force or effect.

Cases referred to Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Ell v. Alberta, [2003] 1 S.C.R. 857, [2003] S.C.J. No. 35, 2003 SCC 35, 227 D.L.R. (4th) 217, 306 N.R. 1, [2003] 10 W.W.R. 401, J.E. 2003-1226, 16 Alta. L.R. (4th) 1, 330 A.R. 201, 2 Admin. L.R. (4th) 167, 35 C.P.C. (5th) 1, 11 C.R. (6th) 207, 109 C.R.R. (2d) 47, 123 A.C.W.S. (3d) 677; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, [2002] S.C.J. No. 13, 2002 SCC 13, 209 D.L.R. (4th) 564, 282 N.R. 201, J.E. 2002-351, 245 N.B.R. (2d) 299, 31 C.C.P.B. 55, 17 C.P.C. (5th) 1, 91 C.R.R. (2d) 1, 112 A.C.W.S. (3d) 57; 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.); Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice) (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 P.E.I., 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

Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 53(1)(b), 86.1 [as am.], 86.2 [as am.] Courts of Justice Amendment Act, 1989, S.O. 1989, c. 55 Constitution Act, 1867, ss. 96, 99, 100

Authorities referred to Ontario Civil Justice Review, First Report (Toronto: Ministry of the Attorney General, 1995) [page198]

Sarah Kraicer and Arif Virani, for appellants. David W. Scott, Q.C., Peter K. Doody and Nadia Effendi, for respondents.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] The Crown appeals from the judgment of Platana J. of the Superior Court of Justice dated August 5, 2010, which held that certain legislative provisions relating to the tenure and remuneration of Case Management Masters violate the principle of judicial independence and are, therefore, of no force and effect. The application judge suspended the declaration of invalidity for a period of 12 months, to August 5, 2011, [at para. 141] "to allow the government to make legislative changes to create an independent, effective and objective process for determining the remuneration and tenure of Case Management Masters".

[2] The Crown seeks an order setting aside the remuneration- related elements of Platana J.'s judgment. If the appeal fails, the Crown also seeks an extension of the stay period to 12 months after the release of this decision.

[3] The respondents cross-appeal the remedy ordered by the application judge. They say that a simple declaration of invalidity is not enough. They submit that remedies of severance and reading in should be applied to give Case Management Masters and traditional Masters the same level of judicial independence (and salary and benefits).

B. Facts

(1) The parties and events

[4] As the application judge pointed out in his judgment, the office of Master has a lengthy pedigree in Ontario. Its roots are in the office of Clerk of the Crown and Pleas in the late 18th and early 19th centuries. The title and office of "Master" was created in 1837 as part of the establishment of the Chancery Court in Upper Canada. Historically, the Masters' salaries were determined by the government, and their position with respect to [page199] pensions, vacations, sick leave and other benefits was the same as that of other public service employees.

[5] In 1973, the Ontario Law Reform Commission released a report noting that this regime was inappropriate in light of the judicial nature of the Master's office. Over the next decade and a half, various changes to the appointment, tenure, removal, salary and benefits of Masters were introduced with a view to bringing their level of judicial independence roughly in line with that of provincial court judges.

[6] In 1989, the Courts of Justice Amendment Act, 1989, S.O. 1989, c. 55 implemented the phasing out of the office of traditional Master through attrition. This legislation also provided traditional Masters with the protections for judicial independence enjoyed by provincial court judges, with minor exceptions. From this point forward, Masters' terms ended at 65 years of age. However, with the approval of the Chief Justice of the Ontario Court, they could continue as full-time or part- time Masters until 70 years of age and, with the approval of the Judicial Council, until 75 years of age. Masters could be removed from office only on grounds of infirmity, conduct incompatible with the office, or failure to perform the duties of the office, and only on an address of the Legislative Assembly following a hearing before the Judicial Council. However, their salary continued to be set by the Lieutenant Governor in Council, without an independent commission's recommendations. Starting in 1992, the salary of the 16 grandfathered Masters was formally pegged to the salary of provincial court judges.

[7] In March 1996, the Ontario Civil Justice Review released its First Report (Toronto: Ministry of the Attorney General). The legislature implemented its recommendations in 1996. Two new sections, 86.1 and 86.2, were added to the Courts of Justice Act, R.S.O. 1990, c. C.43 to create the new and distinct office of Case Management Master. Provisions that were intended to give jurisdiction to Case Management Masters as well as to grandfathered traditional Masters were amended to refer to the two different offices separately. Case Management Masters exercise the same powers as traditional Masters, with the additional responsibility of case management. The compensation of Case Management Masters was lower than, and was not determined in the same way as, that of traditional Masters.

[8] In July 2000, the Masters' Association of Ontario commenced litigation to obtain the identical tenure, salary, pension and other benefits as traditional Masters and provincial court judges. The Superior Court of Justice offered a judicial pre-trial of the application to which both sides agreed. With [page200] the assistance of the pre-trial judge, Winkler J., the parties reached a settlement in 2001, and agreed to Terms of Settlement "in full and final settlement of [the] litigation", which all of the Case Management Masters personally ratified.

[9] In accordance with the Terms of Settlement, the government enacted Order-in-Council 551/2002 (later replaced, by agreement of the parties, with Order-in-Council 458/2003) to implement the salary terms of the settlement. Order-in-Council 458/2003 provides:

Future adjustments to the salary paid to a Case Management Master will be tied to the salary range applicable to the SMG3 Classification on the basis of the following formula:

Effective November 1, 2001 the annual salary for Case Management Masters will be set at 100.2847% of the comparative SMG3 salary. The comparative SMG3 salary shall be set as a maximum of the salary range plus the maximum percentage performance incentive that can be earned. As this figure is adjusted, over time, the salary of Case Management Masters shall be increased and on the same effective dates as the new comparative SMG3 salary comes into force.

[10] The government also agreed to amend the Courts of Justice Act to provide for the enhanced tenure provisions of the Terms of Settlement -- automatic seven-year reappointments until retirement age, followed by one-year reappointments from age 65 to 75 with the approval of the Attorney General and the Chief Justice of the Superior Court of Justice.

[11] Since the enactment of Order-in-Council 458/2003, the salaries of Case Management Masters were adjusted between 2002 and 2009 as follows:

Effective Date Salary ($)

April 1, 2002 155,000

April 1, 2003 164,341

April 1, 2004 164,341

April 1, 2005 174,721

April 1, 2006 174,721

April 1, 2007 184,928

April 1, 2008 190,463

April 1, 2009 190,463 [page201]

[12] In the same time frame, the salary of traditional Masters, pegged by law to the salary of provincial court judges, has risen from $172,210 to $248,057. In other words, the salary of Case Management Masters has risen just over $35,000, whereas the salary of traditional Masters has risen about $76,000 in the same seven-year period.

(2) The application and Platana J.'s decision

[13] In 2009, the Masters' Association of Ontario, representing the 18 Case Management Masters, Carol Albert, a Master appointed before the 2001 Terms of Settlement, and Andrew Thomas Graham, a Master appointed after the 2001 Terms of Settlement, sought a declaration that Case Management Masters are entitled to the same salary, benefits and terms of office as those of traditional Masters (there were only two grandfathered traditional Masters in office in 2009), and that various statutes and Orders-in-Council relating to their remuneration and security of tenure were of no force and effect because they violated the principle of judicial independence.

[14] The application judge determined that two provisions relating to the tenure and remuneration of Case Management Masters were unconstitutional.

[15] On tenure, the application judge held that the requirement in s. 86.1 of the Courts of Justice Act that the Attorney General concur in the recommendation about Case Management Masters continuing in office after age 65 was unconstitutional.

[16] On remuneration, the application judge concluded that s. 53(1)(b) of the Courts of Justice Act was unconstitutional because the direct linkage between the salaries of Case Management Masters and a specific category of public servant (SMG3), without more, failed to provide for judicial independence. The application judge reasoned [at paras. 119-20]:

The essence of financial security is that there be an independent, objective and effective process for determining judicial remuneration. The Respondent submits that tying Case Management Masters' salaries to the position of senior civil servants, by itself, creates a sufficient "sieve" to meet the criteria of financial security. I disagree. In P.E.I. Reference the court noted that " . . . if judges salaries were set by the same process as the salaries of public sector employees, there might well be reason to be concerned about judicial independence." The Court further noted that " . . . any changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective and objective . . ."

The current process for determining Case Management Masters' salary fails to meet that test. While it may be appropriate to consider masters' salaries in relation to an appropriate comparator, the process for selecting this comparator must be one which is independent from the sole discretion of the Executive branch. Moreover, the appropriate comparator may change over [page202] time. Selecting a comparator, and assuming that it will be appropriate for all eternity, is short sighted and doomed to fail if there is no process in place through which judicial officers can challenge the appropriateness of that comparator in the future. If the present case shows nothing else, it is the fact that judicial roles can change dramatically over relatively short periods of time.

[17] On the question of remedy, the application judge rejected the applicants' request that he sever the ultra vires provisions and read Case Management Masters into the provisions that protect the judicial independence of traditional Masters (including their current salary) [at para. 137]:

[T]he choice of process to remedy the failure to meet constitutional requirements should be left to the government. To "read in" the words "Case Management Masters" as requested would effectively establish their salary at that of provincial court judges. That would amount to me selecting a remedy where there are other options.

[18] Instead, the application judge made a simple declaration of invalidity with respect to the two provisions noted above and coupled it with a suspension of that declaration for 12 months.

[19] The Crown appeals only the component of the application judge's decision relating to the remuneration of Case Management Masters. It does not appeal the tenure component of the decision.

[20] The respondents cross-appeal from the remedy chosen by the application judge. They seek the same severance/reading-in remedy they sought before the application judge.

C. Issues

[21] I would frame the issues as follows:

Crown appeal (1) Did the application judge err by holding that the current process for determining the remuneration of Case Management Masters infringes the constitutional guarantee of financial judicial independence?

Respondents' cross-appeal (2) Did the application judge err by not ordering a remedy beyond a simple declaration of constitutional invalidity?

Crown contingent appeal (3) If both the above grounds of appeal and cross-appeal fail, should the deadline for the suspension of the declaration of invalidity be extended to 12 months from the release of this decision? [page203]

D. Analysis

(1) The Crown appeal

(a) Preliminary matters

[22] I begin with four preliminary matters.

[23] First, the Crown does not assert that because two of the three named respondents -- the Masters' Association of Ontario and Master Carol Albert -- were signatories to the 2001 settlement, they do not have standing to bring this appeal. This is a fair concession because many of the current Case Management Masters were appointed after 2001 and clearly have standing to initiate and pursue their claim against the Crown.

[24] Second, the parties agree that, based on an application of the factors in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, the standard of review of the application judge's decision on the issues raised in the appeal and the cross-appeal is correctness. I agree with this shared position.

[25] Third, the parties agree that the principle of judicial independence found in the common law and Constitution, namely, ss. 96, 99 and 100 of the the Constitution Act, 1867 and s. 11(b) of the Canadian Charter of Rights and Freedoms, applies to all Canadian courts without regard to the level of court or the type of case it hears: see Reference re Remuneration of Judges of the Provincial Court of P.E.I., 1997 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, at para. 106 ("Provincial Court Judges Reference").

[26] Fourth, the parties agree that the application judge was correct to find that Case Management Masters are judicial officers entitled to the protections of the constitutional principle of judicial independence.

(b) The constitutionality of the current remuneration process

[27] The Crown contends that the current process for determining the remuneration of Case Management Masters -- a process established by the Terms of Settlement in 2001 and represented in law now by Order-in-Council 458/2003 -- passes constitutional muster. The Crown's position is that, in light of their constitutionally and statutorily restricted jurisdiction and their limited role as final arbiter of disputes or guardians of the Constitution, Case Management Masters require a less stringent level of protection than other judicial officers. Accordingly, the Crown submits that the current provisions governing the remuneration of Case Management Masters are sufficient to satisfy [page204] the essential conditions of judicial independence required for that office.

[28] The two leading cases dealing with the relationship between the constitutional principle of judicial independence and judicial remuneration are Provincial Court Judges Reference and Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice) (2005), 2005 SCC 44, 85 O.R. (3d) 79, [2005] 2 S.C.R. 286, [2005] S.C.J. No. 47 ("Provincial Court Judges' Assn. of New Brunswick"). In both of these cases, the central feature of the remuneration process for judges was the requirement that an independent body be interposed between the judiciary and the executive branch of government.

[29] In Provincial Court Judges Reference, Lamer C.J.C. explained the process in this fashion, at para. 133:

First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, any changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective, and objective, for determining judicial remuneration, to avoid the possibility of, or the appearance of, political interference through economic manipulation. What judicial independence requires is an independent body, along the lines of the bodies that exist in many provinces and at the federal level to set or recommend the levels of judicial remuneration. Those bodies are often referred to as commissions, and for the sake of convenience, we will refer to the independent body required by s. 11(d) as a commission as well. Governments are constitutionally bound to go through the commission process. (Emphasis added)

[30] Similarly, in Provincial Court Judges' Assn. of New Brunswick, the court stated, at para. 11:

Compensation commissions were expected to become the forum for discussion, review and recommendations on issues of judicial compensation. Although not binding, their recommendations, it was hoped, would lead to an effective resolution of salary and related issues. Courts would avoid setting the amount of judicial compensation, and provincial governments would avoid being accused of manipulating the courts for their own purposes. (Emphasis added)

[31] The three points that I draw from these passages are that the constitutional principle of judicial independence requires a "special process" for dealing with the question of judicial remuneration, that the goal of the process is to be "independent, effective and objective", and that there must be an "independent body" involved in, at a minimum, making recommendations to governments about judicial remuneration. [page205]

[32] The phrases "special process", "independent, effective and objective" and "independent body" are, admittedly, only general phrases. They are touchstones or guidelines, not rigid prescriptions. There is a need for flexibility in interpreting and applying these phrases with respect to the wide range of judicial officers performing judicial functions throughout Canada. As explained by Major J. in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, [2003] S.C.J. No. 35, at para. 30, "[t]he manner in which the essential conditions of independence may be satisfied varies in accordance with the nature of the court or tribunal and the interests at stake".

[33] Is the current process for determining the remuneration of Case Management Masters independent, effective and objective?

[34] With respect to objectivity, the formula set out in Order-in-Council 458/2003 links the salaries of Case Management Masters to an objectively chosen comparator, the SMG3 classification for senior public servants at the Assistant Deputy Minister level. In the course of pre-trial discussions freely entered into by the Masters' Association of Ontario, mediated by an experienced superior court judge, and ratified by all the Case Management Masters sitting at the time, both the government and the Case Management Masters determined that the SMG3 classification was an appropriate comparator to which the remuneration of the Case Management Masters should be linked. In this respect, although in the result nothing turns on it, the application judge erred by concluding that the process for selecting the SMG3 comparator flowed from "the sole discretion of the executive branch". In fact, the choice of comparator was a joint decision and was the epitome of objectivity at the time.

[35] With respect to effectiveness, the application judge did not take issue with this component of the process. I agree with him. The salary of Case Management Masters in 2009 was $190,463, which represented an increase of 73 per cent over a 13-year period. Case Management Masters now earn more than all but the most senior government lawyers, all Assistant Deputy Ministers and other public servants compensated as SMG3, all but five chairs of adjudicative and regulatory agencies, and all justices of the peace. Moreover, there has been no difficulty in recruiting excellent candidates to fill Case Management Master vacancies at the existing levels of remuneration.

[36] It is true that there has been a growing gap between the salaries of Case Management Masters and traditional Masters. However, I agree with the application judge's explanation for the current salary of the two remaining traditional Masters, namely, the link between the salaries for traditional Masters and provincial court judges was made in the context of the abolition and [page206] staged phasing-out of the office of traditional Master. Moreover, the traditional Masters benefited from this linkage by, in effect, riding on the coattails of the provincial court judges who enjoyed substantial salary increases to take account of their mushrooming criminal workload. Accordingly, I agree with the application judge's observation that the "salary level established [for traditional Masters] does not reflect constitutional minimum requirements".

[37] The fulcrum for this appeal is the "independent" component of the current process for setting the remuneration of Case Management Masters. The Crown contends that flexibility is permitted in this domain and that, according to this court in Ontario Deputy Judges Assn. v. Ontario (2006), 2006 17250 (ON CA), 80 O.R. (3d) 481, [2006] O.J. No. 2057 (C.A.) ("ODJA"), at para. 38, it is permissible to "link judicial remuneration . . . with the remuneration provided for an objectively-chosen comparator group". This is precisely what the 2001 settlement accomplished, says the Crown, and the respondents must live with their own choice.

[38] The lynchpin for the "special process" described by Lamer C.J.C. in Provincial Court Judges Reference is the existence in the process of an independent body to consider the representations of the government and the judiciary about judicial remuneration and to make recommendations to the government about this subject. "Commission" was the generic name given to such a body in Provincial Court Judges Reference.

[39] However, there is no single template for the title, composition, structure, powers and procedures of these independent bodies. In Provincial Court Judges Reference, at para. 185, Lamer C.J.C. specifically disclaimed an intention "to lay down a particular institutional framework in constitutional stone".

[40] In a similar vein, this court stated in ODJA, at paras. 36-38:

The application judge required the AG to provide the Deputy Judges with recourse to a commission. We do not read the application judge's reasons as requiring a full-scale commission in the public hearing sense. The use of the word "commission" does not imply formal hearings, the calling of evidence, commission counsel, interveners, business premises, publication or any of the other accoutrements common to public or judicial commissions.

As the Supreme Court said in the [Provincial Court Judges Reference] at para. 133, the use of the word "commission" is simply a term of convenience to mean any body interposed between the judiciary and the other branches of government. The only requirement is that the proposed entity be independent, effective and objective. The body chosen would produce a report to the government. Its recommendations, while non-binding, would not be set aside lightly, but rather would be considered in light of the parameters discussed in [Provincial Court Judges Reference] at paras. 133, 179-85; and [Provincial Court Judges' Assn. of New Brunswick] at paras. 18-21. [page207]

Since the Order-in-Council process does not meet constitutional standards and the establishment of a full commission may not be required to meet those standards, we sought alternative proposals from counsel. Counsel for the AG put forward the option of appointing an independent single remuneration consultant to make recommendations on the appropriate remuneration. Counsel for the Deputy Judges Association appeared receptive to this proposal. Another possible option would link judicial remuneration for Deputy Judges with the remuneration provided for an objectively- chosen comparator group. Moreover, we were advised that a law dean has been appointed to produce a report, which is to be released next month, that will include a consideration of options relating to judicial remuneration. Thus, we are persuaded that there are viable options available.

[41] In spite of the flexibility permitted by the case law, there are certain minimum requirements that ground the "independent" component of the special process for setting judicial remuneration. The most important requirement is that there must be a "body" or an "entity" or a "commission" or a "person" in the role of intermediary between the government and the judiciary, and this intermediary must be independent of the government. In the case law, this requirement has been described as the need for "an institutional sieve between the judiciary and the other branches of government": see Provincial Court Judges Reference, at para. 185; and Provincial Court Judges' Assn. of New Brunswick, at para. 14.

[42] I share the view of the application judge that this is what is missing in the special process set out for Case Management Masters in Order-in-Council 458/2003. There is no "body" or "entity" or "commission" or "person" between the government and the judiciary; there is no "institutional sieve".

[43] The Crown contends that the institutional sieve is the SMG3 classification. However, that cannot be. The SMG3 classification is established and controlled by the government; it is the precise opposite of an intermediary at arm's length from the government.

[44] Moreover, to my eyes, there is a glaring irony in the Crown's anchor for its submissions, the need for flexibility in the design of "special processes" for dealing with judicial remuneration, and the Crown's proposed outcome flowing from such flexibility, a linkage in perpetuity between the salaries for Case Management Masters and a single classification in the Ontario public service, the SMG3 classification.

[45] On this point, I set out again what the Supreme Court of Canada said in Provincial Court Judges' Assn. of New Brunswick, at para. 11:

Compensation commissions were expected to become the forum for discussion, review and recommendations on issues of judicial compensation. Although not binding, their recommendations, it was hoped, would lead to [page208] an effective resolution of salary and related issues. Courts would avoid setting the amount of judicial compensation, and provincial governments would avoid being accused of manipulating the courts for their own purposes.

[46] In a similar vein, in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, [2002] S.C.J. No. 13 ("Mackin"), Gonthier J. said, at para. 59, that "the salary commission must convene when a specified period has passed since its last report was submitted in order to examine the adequacy of the judges' salaries in light of the cost of living and other relevant factors".

[47] The linkage, in perpetuity, between Case Management Masters' salaries and the SMG3 classification does not permit the process described in these two cases to develop, unfold and deliver.

[48] The perpetuity point is also a complete answer, in my view, to the Crown's assertion that ODJA and other cases permit reliance on an objective comparator in the "special process" for setting judicial remuneration. I have no trouble with the government and the judiciary identifying and relying on comparators, including comparators from the public sector, in the "special process". However, what ODJA contemplated, and what is constitutionally permissible and valuable at a policy level, is the use of a comparator as a factor, even an important factor, in the "special process". That said, a comparator cannot be the sole factor and it certainly cannot be the sole factor in perpetuity.

[49] On this point, I agree with the application judge, who said [at para. 120]:

Selecting a comparator, and assuming that it will be appropriate for all eternity, is short sighted and doomed to fail if there is no process in place through which judicial officers can challenge the appropriateness of that comparator in the future.

[50] To this I would simply add that it should be open to governments as well to argue that changing conditions render continuing adherence to a particular comparator inappropriate.

[51] Finally, I observe that with respect to all other judicial officers in Ontario -- federally appointed judges, Ontario Court of Justice judges, Ontario Small Claims judges and deputy judges (who sit part-time) and justices of the peace -- their remuneration is determined by the "special process" recommended in Provincial Court Judges Reference. An independent body engages in a process of hearing submissions from government and the judiciary and then makes recommendations to the government about judicial remuneration. The composition, structure and procedure of these "commissions" vary, but the core of the process described in the preceding sentence is shared by all. By linkage to provincial court judges, this process also [page209] applies to the near- obsolete office of traditional Master. In my view, there is no reason for Case Management Masters to be the solitary exclusion from this shared, and constitutionally appropriate, picture.

[52] For these reasons, I conclude that the process for setting the remuneration of Case Management Masters set out in Order-in-Council 458/2003 does not comply with the "independent" component of the "special process" required by the constitutional principle of judicial independence.

The respondent's alternative argument

[53] My conclusion in the preceding section resolves the appeal. Accordingly, strictly speaking, it is not necessary to consider the respondents' alternative argument for its challenge to Order-in-Council 458/2003. However, for the sake of completeness, I will do so.

[54] The respondents contend that the settlement in 2001 that gave rise to Order-in-Council 458/2003 was invalid because it violated the prohibition against negotiations between the government and the judiciary articulated in Provincial Court Judges Reference.

[55] I begin by observing that this strikes me as an unusual argument. The Provincial Court Judges Reference was decided in 1997. The pre-trial settlement was achieved in 2001. The participants in the settlement process were, I underline, the Case Management Masters, who are important judicial officers, the Crown and a senior superior court judge. To merely state that these three entities would be unaware of the well-known Provincial Court Judges Reference is to dismiss it.

[56] In any event, I do not regard the voluntary discussions that led to the 2001 settlement, mediated by Winkler J., as impermissible negotiations concerning salary within the parameters set by Provincial Court Judges Reference and its progeny.

[57] The focus of the discussions at the judicial pre-trial was on establishing a process for determining remuneration in the future. Moreover, it is important not to define impermissible negotiations in too broad a fashion. There is a common sense reality here -- communication between governments and the judiciary, and even discussions between their representatives, are almost always going to be both necessary and valuable. There is, of course, a line between permissible communication and discussion and impermissible negotiations. However, courts should be careful not to draw the line in a way that removes intelligent, respectful dialogue between governments and the judiciary about the remuneration process. [page210]

(c) Conclusion

[58] The application judge was correct to conclude that the current process for setting the remuneration of Case Management Masters was unconstitutional.

[59] Interestingly, in his reasons and in the formal judgment, he declared s. 53(1)(b) of the Courts of Justice Act invalid. That section provides:

53(1) The Lieutenant Governor in Council may make regulations, . . . . . (b) fixing the remuneration of case management masters and providing for the benefits to which they are entitled;

[60] In my view, there is nothing wrong with this generic provision. The constitutional fault lies in Order-in-Council 458/2003, which sets out the invalid process for determining the remuneration of Case Management Masters. It is this Ontario law that must be declared invalid.

(2) The respondents' cross-appeal

[61] Before the application judge, the respondents sought a broad array of remedies if he determined that the process for setting the remuneration of Case Management Masters was ultra vires. Some of the proposed remedies were severance of invalid provisions, reading in protections enjoyed by traditional Masters to provisions dealing with Case Management Masters, retroactivity (to 1996) of the declaration of invalidity, and prescriptions of the mandate of any intermediary established by the government going forward.

[62] The application judge rejected these submissions, preferring to make a simple declaration of invalidity and leaving it to the government to respond. He said [at para. 137]:

[T]he choice of process to remedy the failure to meet constitutional requirements should be left to the government. To "read in" the words "Case Management Masters" as requested would effectively establish their salary at that of provincial court judges. That would amount to me selecting a remedy where there are other options.

[63] The application judge suspended the declaration of invalidity for a period of 12 months.

[64] On this cross-appeal, the respondents renew their request for the numerous and specific remedies mentioned above. They do not challenge the suspension of the declaration.

[65] In my view, the application judge ordered the correct remedy. Importantly, his remedy of simple declaration is the regular remedy in the judicial independence cases commencing [page211] with Provincial Court Judges Reference. In Mackin, which the application judge relied on, Gonthier J. said, at para. 77:

[I]t is not appropriate for this Court to dictate the approach that should be taken in order to rectify the situation. Since there is more than one way to do so, it is the government's task to determine which approach it prefers.

[66] This passage is particularly applicable in the current Ontario context. There are already various models of independent bodies and special processes involved in the review of the remuneration of various judicial officers. The government is entitled to study the question and establish an appropriate model for Case Management Masters.

[67] I also note that in ODJA this court made a simple declaration of invalidity, concluding, at para. 41, "[w]e therefore order the AG to establish an independent, effective and objective process within four months of the release of these reasons".

[68] For these reasons, I would dismiss the cross-appeal.

(3) The Crown contingent appeal

[69] The Crown contends that if both the appeal and the cross-appeal fail, the 12-month suspension of the declaration of invalidity ordered by the application judge should be extended to a 12-month period from the date of the release of this decision. This would result in a suspension of almost 20 months. In support of this request, the Crown points out that the legislature will probably not sit in September because of the fixed election date of October 6, 2011. Then, after the election, the government will need time to prepare its legislative agenda before the legislature is recalled. This constellation of facts, the Crown submits, suggests that a 20- month suspension of the declaration of invalidity is warranted.

[70] I am inclined to accept this request. Both the Case Management Masters and the Crown appealed from the application judge's decision. As their materials and arguments on the appeal and cross-appeal made clear, there are many issues, and many options on those issues, that the government will have to consider before establishing an independent, effective and objective special process for setting the remuneration for Case Management Masters. Those issues include the title, composition, structure, powers and procedures of the independent body, as well as its mandate (e.g., prospective and/or retroactive, the relationship between Case Management Masters and traditional Masters, etc.). This reality, and disruptions to the government process as a fixed election approaches, support the extension requested by the Crown. [page212]

E. Disposition

[71] I would dismiss the appeal, with the exception that para. 1 of the formal judgment should be amended by substituting "Order-in-Council 458/2003" for "paragraph 53(1) (b) of the Courts of Justice Act, R.S.O. 1999, c. 43".

[72] I would dismiss the cross-appeal.

[73] I would extend the suspension of the declaration of invalidity in para. 3 of the formal judgment to "a period of 12 months from the date of the release of this decision".

[74] As to costs, I would observe that success on the appeal and cross-appeal appears to be about evenly divided. If any party seeks costs, it should file written submissions (five page maximum) within two weeks of the release of this decision. The other party should respond in a similar fashion within seven additional days.

Appeal and cross-appeal dismissed.