COURT OF APPEAL FOR ONTARIO

CITATION: Association of Justices of the Peace of Ontario v. Ontario, 2013 ONCA 532

DATE: 20130830

DOCKET: C55585

Goudge, Watt and Pepall JJ.A.

BETWEEN

Association of Justices of the Peace of Ontario

Applicant (Appellant)

and

Her Majesty the Queen in Right of the Province of Ontario

Respondent (Respondent)

James Morton, for the appellant

Sunil Kapur and Lauren Cowl, for the respondent

Heard: August 22, 2013

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated May 23, 2012.

ENDORSEMENT

[1] This is an appeal from two orders of Belobaba J. The first adjourned for six months the appellant’s application for an interpretation of an Ontario Regulation. The second dismissed that application.

[2] In our view, the appeal from both orders must be dismissed.

[3] In Ontario, the annual remuneration of Justices of the Peace is determined by a process very analogous to that for Ontario provincial judges and federally appointed judges. An independent Commission makes a recommendation to which the Ontario government responds. The government then implements its response.

[4] The Commission recommendation for the 2008 remuneration of Justices of the Peace was made on December 18, 2008. The respondent accepted the recommendation and passed a Regulation implementing it on May 29, 2009.

[5] The Regulation provided for an increase in the remuneration of Justices of the Peace by the amount of the Statistics Canada index known as the Industrial Aggregate (Ontario), but did not quantify that amount. The respondent determined the amount to be 2.7% based on the Statistics Canada calculation as of December 2008.

[6] Because of a change in the method of calculation made by Statistics Canada in January 2009 that would have yielded a higher percentage, a dispute arose between the appellant and the respondent as to the correct percentage the respondent should use. This resulted in the respondent referring the issue of the appropriate percentage back to the Commission. It issued its report on May 2, 2011, in which the majority recommended a compromise increase of 3.3%.

[7] The respondent was slow to respond to this recommendation. Before it did so, the appellant brought this application before Belobaba J. seeking an interpretation of the Regulation passed on May 29, 2009.

[8] The application judge adjourned the application and granted the respondent an additional six months to respond to the Commission but, sensibly, on terms that would encourage settlement.

[9] When it finally responded on November 20, 2012, the respondent explained why it rejected the compromise percentage and would continue to use the amount of 2.7%.

[10] The appellant brought the application back before the application judge on December 7, 2012. He dismissed it based on the applicable jurisprudence beginning with the P.E.I. Reference (Reference Re: Remuneration of Judges of the Provincial Court (P.E.I.), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3). That case law provides that a government’s determination of judicial remuneration made in response to a Commission recommendation is subject only to judicial review on a standard of rationality. The appellant’s appropriate course therefore, was to proceed by judicial review, not to seek an interpretation of the implementing Regulation.

[11] While the appellant appeals both orders of the application judge, Mr. Morton candidly acknowledged that only his appeal of the December 7, 2012 order matters. If he succeeds in that appeal, his appeal of the adjournment order is of no moment. That is equally true if he fails in his appeal of the December 7, 2012 order. We therefore need say nothing more about the appeal of the adjournment order, and it is dismissed.

[12] Turning to the appeal of the December 7, 2012 order, we agree with the application judge. The real dispute between the parties is about the respondent’s response to the Commission’s recommendations for the 2008 remuneration of Justices of the Peace. The Regulation that the appellant seeks to have interpreted is merely the implementation of that response. The jurisprudence of the Supreme Court of Canada makes clear that in these circumstances judicial oversight is by way of judicial review of the response, on a standard of rationality, not by judicial interpretation of the implementing Regulation. In that way, the balance is preserved between judicial independence and the legislature’s right to set judicial remuneration. The appellant’s appropriate course therefore is to proceed by way of judicial review, not by way of an interpretation of the implementing Regulation.

[13] The appeal is dismissed. No costs are sought or ordered.

“S.T. Goudge J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”