Superior Court of Justice - Ontario
COURT FILE NO.: CV-10-407678
DATE: 20130102
RE: Association of Justices of the Peace of Ontario / Applicant
AND:
Her Majesty the Queen in Right of the Province of Ontario / Respondent
BEFORE: Justice E. P. Belobaba
COUNSEL: James Morton and Mark Persaud for the AJPO / Applicant
Sunil Kapur and Brian Wasyliw for the Province of Ontario / Respondent
HEARD: March 15, May 23 and December 7, 2012
ENDORSEMENT
[1] The Association of Justices of the Peace of Ontario (“AJPO”) seeks a declaration that section 2 of the Salaries and Benefits of Justices of the Peace Regulation, O. Reg. 247/94, requires Ontario to implement a salary indexing adjustment for the salary year 2008 to 2009 based on the Statistics Canada Industrial Aggregate Index for Ontario (“IAI”) which came into effect in March, 2009.
[2] Based on its view of the applicable IAI, the AJPO says that the province’s JPs are entitled to a 3.84% salary adjustment. Ontario’s view of the applicable IAI is that JPs are entitled to 2.7 %. For a JP earning $109,000, the differential amounts to about $1200.
[3] When it was asked by Ontario to recommend one rate or the other, the majority of the three-person Remuneration Commission, in its Second Supplementary Report, dated May, 2, 2011, suggested a compromise rate of 3.3%. The dissenting member recommended 2.7%.
[4] I heard this application on May 23, 2012. Because Ontario had not yet responded to the Remuneration Commission’s Second Supplementary Report recommending the 3.3% compromise, I thought it prudent to adjourn the matter to early December, 2012. I was mindful of the case law that discouraged judicial involvement when the work of a compensation commission was still underway.[^1] I was also mindful that more than a year had gone by with no response from the Government to the recommendation of 3.3%. By adjourning the application to early December and thus allowing the Government a full 18 months to respond,[^2] and by providing counsel with a “roadmap” of what I would likely decide when we reconvened, it was my hope that the matter would be resolved or moved forward in a prudent and reasonable fashion.
[5] Therefore, at the conclusion of the May 23rd hearing, I drafted the following seven-point endorsement and attached it to the Application Record:
Endorsement of May 23, 2012
Non-judicial observation: the recommendation in the Second Supp Report re 3.3% for 08/09 is eminently sensible and hopefully will be accepted by Govt.
Court should not intervene while Comp Commission still in progress – but Govt can’t take forever to respond to Second Supp Report–absolute outside limit of reasonable response time is 18 months (twice the 9 months max for a s. 4 report and Second Supp Report is akin to s. 4 report).
This application is adjourned for an additional 6 months to be heard by me for further 30 minutes only (all submissions have been made) in early December/12 (date to be set with counsel).
If Govt responds to Second Supp Report by that date, then the application will be dismissed (on a without costs basis) because appropriate court role is via judicial review / rationality of Govt’s response
If Govt does not respond by that date, then application will proceed because AJPO is entitled to judicial interpretation of a duly enacted Reg re applicable IAI - my decision will be rendered within one week thereafter.
I agree with Govt that all relevant leg history, commission reports etc can be considered –I find the Second Supp Report to be particularly instructive re what was intended etc.
If I must rule on this application in December /12 I can advise counsel that based on all of the submissions, I will likely rule in favour of the AJPO and find that the applicable IAI for 08/09 is 3.84%.
[6] When I met with counsel on December 7, 2012 I was advised of the following: one, that the AJPO had appealed my May 23rd endorsement (I wasn’t told on what grounds) and two, that the Government of Ontario had responded to the Second Supplementary Report on November 20, 2012. In a five-page letter, the Minister of Government Services set out in detail why the majority’s 3.3% compromise recommendation was non-responsive to the Government’s referred question and why the Government decided to accept the recommendation of the dissenting member. The letter concluded that the IAI rate that would be used to calculate the 2008-09 adjustment would be 2.7%.
[7] During the course of the December 7, 2012 meeting, counsel also advised that no further submissions would be made by either side and that the appeal from my May 23rd endorsement was scheduled to be heard sometime in March. Counsel for the AJPO asked if I would release a supplementary endorsement providing some context for the May 23rd endorsement and a more definitive ruling with regard to Point No. 4:
- If Govt responds to Second Supp Report by that date, then the application will be dismissed (on a without costs basis) because appropriate court role is via judicial review / rationality of Govt’s response
[8] I agreed to do so. Hence this additional endorsement.
[9] To further explain Point No. 4, I refer the parties to the decisions of the Supreme Court of Canada in the PEI Reference[^3] and Bodner[^4]. The Supreme Court made clear that the ‘compensation commission’ process that has been in use for some time at both the federal and provincial levels to help determine judicial salaries, sets out carefully balanced and circumscribed roles for the commission, the government and the reviewing court in order to promote and protect judicial independence.[^5] The recommendations of the compensation commissions are consultative and need not be binding. The government retains the power to depart from the recommendations of the independent commission and determine judicial compensation provided it justifies its decision with rational reasons. These reasons are subject to a “limited form of judicial review by the superior courts” that should do no more than assess the government’s decision on the basis of “simple rationality.”[^6]
[10] Hence my direction to counsel in Point No. 4 that if the Government of Ontario responded by the December hearing date the application would be dismissed – the appropriate remedy would be judicial review.
[11] The Government responded on November 20, 2012. The appropriate remedy is now judicial review.
Disposition
[12] The application is dismissed.
[13] No costs were sought and none are awarded.
Belobaba J.
Date: January 2, 2013
[^1]: Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 [“PEI Reference”]; Provincial Court Judges Ass’n of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges Ass’n 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 S.C.R. 286 [“Bodner”].
[^2]: Section 10(2) and (3) of O. Reg. 319/00 provides for a nine-month maximum with respect to a “section 4” report. There is no maximum prescribed for a “section 5” report. I acknowledge that the Government’s follow-up query about which IAI should apply likely falls under section 5. In my view, the imposition of an 18-month deadline, twice the nine-month maximum for a section 4 report, was in all the circumstances, fair and reasonable.
[^3]: Supra, note 1.
[^4]: Supra, note 1.
[^5]: Bodner, supra, note 1, at para. 44.
[^6]: PEI Reference, supra, note 1, at paras. 166 and 180 to 183; Bodner, supra, note 1, at paras. 21 to 30.