The provincial government needs to face a higher barrier when rejecting independent judicial pay commissions, says a Toronto lawyer after the Divisional Court upheld its decision to deny justices of the peace a significant salary boost.
In its report, two of the three commission members recommended a 16.4-per-cent pay rise over a four-year period. However, the provincial government sided with its own appointee to the commission, who found that an automatic rise of 8.2 per cent guaranteed under a previous agreement was enough of an increase.
But James Morton, a former president of the Ontario Bar Association who has acted for the AJPO in the past, says the “rational basis” test sets the bar too low for decision-makers in government.
“Eventually, I would like to see commission reports for all judicial officers, not just justices of the peace, that are binding unless there are truly extraordinary circumstances,” says Morton, who did not represent the AJPO in this proceeding.
“For the moment, it seems to me like it’s far too easy for the government to simply come up with a reason why they don’ t like the recommendations, and not implement them. That leads to an emasculation of the report. Why should we bother with a commission which is lengthy, expensive and complicated if, at the end of the day, one of the parties can decide not to pay any attention to it?” he adds.
Patrick LeSage, the former chief justice of the Ontario Superior Court of Justice, chaired the commission, sitting with two lawyers nominated by the parties: AJPO pick Linda Rothstein and government selection Roy Filion. After failing to reach an agreement, LeSage and Rothstein authored a majority report in March 2015, calling for a 16.4-per-cent rise over four years, doubling the 8.2-per-cent rise JPs were automatically due in accordance with Ontario’s Industrial Aggregate Average.
That would take JP pay to more than $135,000 from about $116,000 at the end of 2014, the last full year covered by the commission.
According to the Divisional Court decision, LeSage and Rothstein concluded JPs’ current rate of pay “was not fair and reasonable,” and that the “significant” increase they recommended was justified by the increasing complexity of the work they do.
However, Filion’s minority report concluded that no further rise was necessary beyond the 8.2 per cent required by the industrial average, because working conditions for JPs had not changed “sufficiently” to warrant a greater increase, the Divisional Court decision said.
In its response to the reports, the government adopted Filion’s recommendation, claiming the majority’s findings about the increasing complexity of JPs’ work were not well founded. The government report took note of a previous increase of 23 per cent awarded over three years in 2007, the fact that charge numbers had declined and that reforms had taken place to streamline work carried out by JPs, adding that any increase in workload was modest.
In addition, the government report pointed out that the province had no problem attracting applicants at the current salary level, and it denied JP pay was unreasonable compared with other judicial officers, considering the lack of legal training necessary to qualify.
The government also rejected the majority’s recommendation to give JPs credit for 1.5 days of work for every day worked on a weekend and statutory holiday, noting that the current practice of awarding a day off in lieu matched the policy for judges.
The AJPO’s lawyer, Tom Curry, a partner with Lenczner Slaght Royce Smith Griffin LLP, argued that the government had failed to meaningfully explain its reasons for disagreeing with the majority’s conclusions on the complexity of work carried out by JPs, but the Divisional Court disagreed, noting that the government had no obligation to defer to the commission. Its job, wrote Ontario Superior Court Justice Katherine Swinton for the unanimous court in her Oct. 25 decision, was to determine whether the government had a reasonable factual foundation for its conclusions.
“The LGIC disagreed not only with the significance of any increase in complexity in the work of justices of the peace. It also disagreed with the weight given to economic and fiscal factors by the Majority,” Swinton wrote. “In conclusion . . . there was a rational basis for the government’s response to the salary recommendation.”
There was some joy for the AJPO, however, on the issue of proposed changes to benefits and post-retirement insured benefits that would bring JP entitlements in line with changes to other public sector workers announced part-way through the commission. All three commissioners agreed the issue should be deferred to the next commission on JP remuneration as there was no time for hearings on the issue, but the government announced its plans to implement the changes anyway.
Justice Swinton ordered the government to row back on that decision until a new commission studies the issue after concluding its unilateral action “does not withstand scrutiny.”
Curry tells Law Times that while he had been “hopeful we would be able to succeed on a broader basis,” he was “pleased the court agreed” with his submissions on the benefits issue.
Brendan Crawley, a spokesman with the Ministry of the Attorney General, said in a statement that he could not comment on the decision because the appeal period had not passed.
Morton says that JPs’ work is becoming more complex.
“They really do have to deal with things that are just as complicated as some that come before Superior Court justices,” he says.