SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-489668

DATE: 20140714

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.M. Morgan

COUNSEL:
James C. Morton and Thomas Slade, for the Applicant

Josh Hunter and Sarah Kraicer, for the Respondent

HEARD: July 14, 2014

ENDORSEMENT

[1] The Applicant seeks a ruling as to the constitutionality of the present pension arrangements for Ontario’s Justices of the Peace. The existing structure for Justices of the Peace provides for them to have pensions in the same fashion as Ontario public servants. The essence of the Applicant’s argument is that the constitutional principle of judicial independence requires that special provision be made for the pension of the Justices of the Peace to ensure that their pensions cannot be interfered with by the executive in a discretionary or arbitrary manner.

[2] The Respondent opposes the Application on its merits. The essence of the Respondent’s argument is that the current arrangement, in which the Justices of the Peace are members of Ontario’s public servants’ pension plan, does not undermine judicial independence and gives rise to no claim for a separate judicial pension plan for the Applicant’s members.

[3] All changes to the pension plan that relate to Justices of the Peace must first be considered by the Justice of the Peace Remuneration Commission established by O. Reg. 391/00 on June 1, 2000. On February 18, 2014, the Ontario government announced changes to the post-retirement insured benefits applicable to certain public servants. These proposed changes potentially impact the benefits provided to Justices of the Peace, and are therefore within the Commission’s mandate. The Sixth Commission is currently considering the proposed changes. At the same time, the Applicant and the Respondent have each put the question of whether the constitution precludes Justices of the Peace from being members of the province’s public service pension plan before the Commission.

[4] The Respondent submits as its alternative argument today that the present Application is premature, and that it should await the report of the Sixth Commission on the very question that is before the court. The Applicant submits that the Commission is a non-binding process and that its reports take the form of recommendations that can be accepted or rejected by the government and that, accordingly, there is no need to await the outcome of a process that will not result in an actual determination of the issue at hand.

[5] Counsel for the Applicant is correct that while the Commission process is a necessary one, its conclusions do not bind the government. While the Ontario government has often followed the Commission’s recommendations in the past, it has not always done so. Where it chooses to reject a Commission recommendation, its decision to do so is subject to judicial review on a rationality basis: see Ontario Federation of Justices of the Peace Associations v Ontario, 1999 19929 (ON SC), [1999] OJ No 786 (Div Ct).

[6] On the other hand, as the Federal Court of Appeal observed in C.B. Powell v Canada (Border Services Agency), 2010 FCA 61, at para 30, “[t]he normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted.” The Supreme Court of Canada has likewise instructed that, “[w]hile such [early] intervention may sometimes be appropriate, there are sound practical and theoretical reasons for restraint”: Halifax v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364, at para 36.

[7] The question posed here is a constitutional one, and it is undoubtedly the case that the Superior Court has the inherent jurisdiction to adjudicate on the constitution. Formally speaking, a constitutional matter like this can be heard by the court without waiting for the Commission process. But the formalities of the Court’s inherent jurisdiction are not the only consideration. After all, the Supreme Court of Canada has admonished that courts should generally “refrain from overlooking the expertise a tribunal may bring to the exercise of interpreting its enabling legislation and defining the scope of its statutory authority”: Council of Canadians with Disabilities v Via Rail Canada Inc., 2007 SCC 15, [2007] 1 SCR 650, at para 89.

[8] The Commission is an experienced body chaired by retired Justice Patrick LeSage. I understand that the constitutional arguments have been canvassed in full before the Commission, and one would expect that the Commission’s report on the matter in issue here would be highly informative. One of the important issues in the case relates to the Commission process itself and whether it satisfies the need for decision-making independent of the executive branch of government. It would certainly be helpful to have the Commission’s own views on that question.

[9] I am mindful of the Applicant’s concern that further delay could be prejudicial to the Applicant’s members; however, there is no reason to think that the government will implement any serious changes knowing that this constitutional Application is pending. O. Reg. 319/00 identifies the end of the Sixth Commission’s reporting period as March 31, 2015, and counsel for both parties here are hopeful that the report will be issued by that date.

[10] I am therefore adjourning this Application pending the report of the Sixth Commission. While I do not think it is necessary that I remain seized of the Application, I have read the relatively voluminous materials and it would seem in keeping with judicial economy to have this matter come back to me. I will therefore remain seized.

[11] I will leave it to counsel to book a new date once the Commission has reported. The report can be added to the record as a supplementary filing.

[12] Costs of today are to be determined with the costs of the hearing of the Application.

Morgan J.

Date: July 14, 2014