[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 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] 1 S.C.R. 405 ("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:
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 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.
1 comment:
Howdy this is kind of of off topic but I was wondering if blogs use WYSIWYG editors or if you have
to manually code with HTML. I'm starting a blog soon but have no coding experience so I wanted to get guidance from someone with experience. Any help would be enormously appreciated!
Look into my blog graduate certificate
Post a Comment