The provincial government has appealed a ruling by a Superior Court judge that labelled legislation concerning the tenure and remuneration of case management masters unconstitutional.
The clock began ticking in August this year when Ontario Superior Court Justice Terrence Platana struck down two sections of the Courts of Justice Act.
After finding they breached the constitutional principle of judicial independence, he suspended the effect of his decision for a year to give the government time to make changes. But the Ministry of the Attorney General has appealed the decision, with a hearing set for February.
Platana ruled that a process linking case management masters’ pay to top-level public servants whose rate in turn was set by the provincial cabinet wasn’t independent enough.
Meanwhile, he found that a requirement that the attorney general give annual consent for case management masters to sit after the retirement age of 65 also violated judicial independence, especially since those appointed before 1989 could continue without such authorization until they were 75.
Peter Doody, a partner with Borden Ladner Gervais LLP who represented the Masters’ Association of Ontario, calls the decision a mixed blessing.
“It’s bittersweet for us,” he says. “We were obviously pleased but we were hoping that the application judge would go further.”
The case has its roots in a series of court reforms in Ontario. Masters began to be phased out in 1989 with the merger of county and district courts with the Supreme Court of Ontario. Grandfathered masters continued to perform their duties as so-called traditional masters, but the government made no further appointments.
In 1996, however, the province created a new role for judicial support officers who eventually became known as case management masters. The association, which launched the constitutional challenge, represents both traditional and case management masters. It argued the new masters did the same job as the old ones but for less money and security.
Doody says his clients wanted the 1996 legislation that revived the right to appoint masters declared invalid because he says it removed all the protections for judicial independence that traditional masters had built up over the years. They have cross-appealed, asking for more sections of the act to be declared invalid.
“There is no basis to suggest case management masters are a lesser species of judicial being, which is what the attorney general would have you believe,” Doody says.
In its submissions, the Ministry of the Attorney General denied the new office was a continuation of the old one. It claimed the new positions were created to help judges implement case management and that that function remained at the heart of the jobs of case management masters.
But the ministry stands virtually alone in that view, according to Platana’s decision. Whatever the origins of the position, case management masters now perform virtually identical duties to traditional masters, he wrote. Both can grant motions for summary judgment and adjudicate both uncontested and contested motions brought in writing. They can also conduct reference trials and motions under the Construction Lien Act.
“No distinction can practically now be drawn,” Platana wrote.
In 2001, the association signed an agreement that tied the pay of case management masters to a group of senior officials in the public service, including assistant deputy ministers. Traditional masters, meanwhile, had their pay linked to that of provincial court judges in 1990.
By 2009, the remaining traditional masters received almost $250,000 per year, about 30 per cent more than their case management master colleagues who collected around $190,000. Traditional masters are also entitled to join the more generous judicial pension plan while case management masters can only join the public service pension plan.
In the 2001 deal, case management masters also agreed to seven-year terms that were automatically renewed until the age of 65. After that, the attorney general and chief justice must approve reappointments on an annual basis until age 75.
According to the ministry, the agreement should have barred the association from launching its action. Eight of the province’s 15 case management masters were party to the settlement, but Platana said neither side could “contract out of constitutionally required protections for judicial independence.”
“The province has created a group of masters with a second class of post-retirement tenure, holding office after age 65 at the pleasure of the minister,” he wrote. “Recognizing again that the work performed by both kinds of masters is essentially the same, it cannot reasonably be said that case management masters are entitled to less security of tenure than traditional masters.”
Platana also found that while it may be appropriate to link masters’ salaries to a comparable group in the public service, “the process for selecting this comparator must be one which is independent from the sole discretion of the executive branch.” In any case, the comparator group can easily change over time, a choice masters should be able to challenge, Platana 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.”
"Ontario’s position on the appeal is that the existing provisions are constitutional and that the remuneration process for Case Management Masters is effective, objective and independent," said Kristen Rose a spokeswoman for the Ministry of the Attorney General in an e-mail.
Editor's note: Comment from the Ministry of the Attorney General added after initial publication.