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Judges get pay hike but no extra boost for appeal courts

|Written By Glenn Kauth

The federal government has rejected a recommendation by the Judicial Compensation and Benefits Commission that would see appeal court judges paid better than their counterparts in the trial courts.

“There is a hierarchy of judicial decisions and courts but the responsibilities of individual judges, whether trial or appellate, are equivalent in terms of their obligation to fairly, impartially, and independently decide each case,” the federal government wrote in its official response this month to the commission’s series of recommendations on judicial salaries in May.

The commission, headed by Osler Hoskin & Harcourt LLP corporate counsel Brian Levitt, thought otherwise.

It recommended a three-per-cent salary differential for appeal court judges after concluding that “the time has come to deal with the question of salary differentials for appellate court judges.”

“Appellate judges must not only state the law, they must also correct legal errors made in courts of first instance,” the commission stated in justifying the differential.

The federal government has, however, accepted the commission’s recommendation for a salary increase for judges overall based on the statutory indexing provisions already in place.

The indexing provisions would see salaries for federally appointed judges of the trial courts, effective April 1, 2012, increase to $288,100 from the current $281,100.

While the government initially resisted the existing framework for indexing judges’ salaries according to the Judges Act, it changed its position given that “current economic conditions in Canada appear less grave than they did” at the time of its response on the issue in 2009.

In making its recommendations, the commission must take into account several factors: the prevailing economic conditions in Canada, including the government’s financial position; the role of financial security in ensuring judicial independence; the need to attract good candidates to the judiciary; and any other objective criteria considered relevant.

The government, in turn, announced its response on Oct. 12. Although the commission’s recommendations aren’t binding, the government must, according to the Supreme Court, provide reasons for rejecting them.

In doing so, it must show it has respected the commission’s process.

“The government recognizes the important role the judiciary plays in our society,” said Justice Minister Rob Nicholson.

Robert Brun, president of the Canadian Bar Association, says the organization is happy with the way the process worked out. “The result that has occurred here is a good one in our view,” says Brun, whose organization made submissions to the commission.

In particular, he was happy the government issued its response in advance of the required six-month timeline for doing so.

Lawyer Pierre Bienvenu, speaking on behalf of the Canadian Superior Courts Judges Association, echoes that sentiment and is also happy with the timeliness of the response in contrast to past commission reports.

He notes the association and the Canadian Judicial Council are neutral on the question of a salary differential for appeal court judges.

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