Tuesday, September 10, 2013

Judicial Compensation Commissions

Judges of the Provincial Court (Man.) v. Manitoba et al., 2013 MBCA 74 considers judicial compensation commissions.  Judicial officers do not negotiate with the Government regarding compensation;  rather compensation commissions are established to determine what is a fair and proper compensation.  The recommendations of compensation commissions are, unless otherwise provided for by statute, not binding on the Government.  However, if the Government rejects or varies the recommendations, it has to provide a rational reason for doing so and the process must be properly followed.  Here the Court considered what is the test for providing a rational reason to reject the compensation commission:

[46]                     Both parties agree that the legal test applicable to the matters at issue was set out by the Supreme Court of Canada in theBodner case.  The difference between the parties arises from the application judge's application of the Bodner test.  Before commenting on the application judge's application of the law to the facts, I believe it would be helpful to set out the law in this area.

[47]                     In the Bodner case, Provincial Court judges in New Brunswick, Ontario and Quebec, justices of the peace in Alberta and municipal court judges in Quebec sought judicial review of their governments' decision to reject certain compensation committee recommendations relating to their salaries and benefits.

[48]                     The Supreme Court of Canada took the opportunity to set out the principles that apply in these situations and to clarify the operation of the committees that they recommended be set up in the P.E.I. Reference case in 1997.

[49]                     They held that the JCC recommendations are not binding upon a legislature, unless the legislature provides otherwise.  The government may choose not to follow the recommendations, but it must justify its decision with rational reasons and those rational reasons must have a reasonable factual foundation (Bodner at para. 39).

[50]                     As indicated earlier in these reasons, the role of the application judge upon review is to conduct a deferential, limited form of judicial review.  The standard of judicial review is one of simple rationality.  The test developed in Bodner is composed of three parts:

1.     Has the government articulated a legitimate reason for departing from the commission's recommendations?

2.     Do the government's reasons rely upon a reasonable factual foundation?

3.     Viewed globally, has the commission process been respected and have the purposes of the commission, preserving judicial independence and depoliticizing the setting of judicial remuneration, been achieved?

[51]                     In Bodner, the court explained what would be "legitimate reasons" (at paras. 23-24):


The commission's recommendations must be given weight.  They have to be considered by the judiciary and the government.  The government's response must be complete, must respond to the recommendations themselves and must not simply reiterate earlier submissions that were made to and substantively addressed by the commission.  The emphasis at this stage is on what the commission has recommended. 


The response must be tailored to the commission's recommendations and must be "legitimate" ... which is what the law, fair dealing and respect for the process require.  ….


[52]                     Reasons that are complete and that deal with the committee's recommendations in a meaningful way will meet the standard of rationality.  Legitimate reasons must be compatible with the common law and the constitution.  The government must deal with the issues at stake in good faith, and bald expressions of rejection or disapproval are inadequate.  Instead, the reasons must show that the committee's recommendations have been taken into account and must be based on facts and sound reasoning.  They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation.  The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately.  They must preclude any suggestion of attempting to manipulate the judiciary (Bodner at para. 25).

[53]                     With respect to the second part of the test, the reviewing court "must determine whether the government has explained the factual foundation of its reasons in its response" (Bodner at para. 36).  The court must also consider whether it is rational for the government to rely on the stated facts or circumstances to justify its response.  While the government may expand upon the factual foundation in affidavit evidence before a reviewing court, "[a]bsent new facts or circumstances, as a general rule, it is too late to remedy that foundation in the government's response before the reviewing court" (ibid.).

[54]                     In applying the third part of the test, the reviewing court is to consider the overall process from a global perspective.  The focus shifts to the totality of the process and of the response.  Although a court may find fault with certain aspects of the process followed, the court must weigh and assess the government's participation in the process and its response in totality, and determine whether the government has respected the purposes of the committee:  preserving judicial independence and the depoliticization of the remuneration process.  In other words, has the government engaged in a meaningful way with the process of the commission?  As Bodner stated (at para. 43):


A court should not intervene every time a particular reason is questionable, especially when others are rational and correct.  To do so would invite litigation, conflict and delay.  This is antithetical to the object of the commission process.  If, viewed globally, it appears that the commission process has been effective and that the setting of judicial remuneration has been "depoliticized," then the government's choice should stand.


[55]                     Also, at the third stage, looking at the matter from a global perspective, if the government has participated actively in the process, it must be shown greater deference than if it had ignored the process (see Bodner at para. 83).

[56]                     So, in summary, the reviewing court is to conduct a limited, deferential review and determine whether the government's reasons for not following the recommendations of the committee were rational.  The reasons will be rational where there existed evidence of a reasonable factual foundation for the government's decision to depart.  The evidence must be reviewed globally and not piece by piece.


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