The Association of Justices of the Peace of Ontario will challenge the decision of a Superior Court judge who said disputes related to judicial salaries have to be dealt with through a judicial review, according to the association’s counsel.
The association asked the Ministry of Government Services to increase the salaries of Ontario’s justices of the peace by 3.84 per cent in accordance with an updated Statistics Canada wage calculating tool that a factum prepared by its counsel, James Morton, refers to as “a fully revised survey of employment data more accurately reflecting actual wage trends.”
But the government believes justices of the peace are entitled to a 2.7-per-cent salary adjustment for the salary year 2008-09 given Statistics Canada data available in 2008 prior to the updated number.
When a three-person remuneration commission was asked to mediate, the majority voted for a compromise adjustment of 3.3 per cent. But the government elected to adopt the recommendation of the dissenting member of the commission who suggested a 2.7-per-cent adjustment was appropriate.
“Determining ‘fair and reasonable remuneration’ requires an objective analysis of what level of remuneration is appropriate to maintain public confidence in the independence of the judiciary,” wrote Government Services Minister Harinder Takhar in a Nov. 20 response to the commission. “The majority of the commission failed to conduct such an assessment. Rather, it simply split the difference between the two [industrial aggregate index] rates published by Statistics Canada at different times in an attempt to reach a compromise solution.”
Since the 2.7-per-cent recommendation was the lowest, the government simply chose that one, Morton argues.
But on Jan. 2, Superior Court Justice Edward Belobaba dismissed the association’s application for a declaration in its favour as he found he wasn’t in a position to rule either way. The association must seek judicial review if it finds the government’s reasons unacceptable, Belobaba said.
“These reasons are subject to a ‘limited form of judicial review by the superior courts’ that should do no more than assess the government’s decision on the basis of ‘simple rationality,’” Belobaba wrote in his ruling.
“The appropriate remedy would be judicial review.”
But the association claims the judge should have made a decision by simply interpreting the salaries and benefits of justices of the peace regulation, which was updated shortly after Statistics Canada’s improved industrial aggregate index for Ontario came out.
“We say this regulation is passed and a regulation is public law binding on everybody and the government and justices of the peace,” Morton says.
“And the regulation having been passed, we are no longer in the commission process. It’s simply a matter of what you want this regulation to mean and the people to determine that are judges.
“If it was before the regulation is passed, then I think we would agree. It’s a matter of the commission process. But the commission process ends, it was completed when the regulation is enforced. So we say it’s too late for the commission process.”
But the association is also going to launch a judicial review to cover all of its bases even though it believes there shouldn’t be one, adds Morton.
“In order to protect our position, we’ve commenced a judicial review and the judicial review says the government’s refusal to accept the commission’s recommendation is not reasonable.”
In a factum prepared for the Superior Court, Morton quotes the Court of Appeal on statutory authority. “As a rule, the public acts of a legislature are not meant to operate as historical documents,” reads the quote from the appeal court.
“They are written with an eye to the indefinite future, on the assumption they will be applied not only to the facts in existence at the time they come into force, but also to conditions and circumstances as they evolve from time to time.”
For Morton, it’s a no-brainer that the legislation should be sufficient to make a judgment in the case. “It’s public law that’s binding on everybody. It’s the same as the statute and what’s called for is interpretation and what it means rather than, you know, negotiating on the meaning of legislation.
“The judge should have made a decision determining the meaning of the regulation . . . and failing to do that was a legal error.”
In his ruling, Belobaba said he had let counsel know in May 2012 that the case would be dismissed if the government replied to the commission’s recommendation by December. At the time, he purposefully refrained from intervening in the case, he wrote. “I was mindful of the case law that discouraged judicial involvement when the work of a compensation commission was still underway. I was also mindful that a year had gone by with no response from the government to the recommendation of 3.3 per cent.
“By adjourning the application to early December, and thus allowing the government a full 18 months to respond, and by providing counsel with a roadmap of what I would likely decide when we reconvened, it was my hope that the matter would be resolved or moved forward in a prudent and reasonable fashion.”
Belobaba also noted that the government isn’t obliged to adopt the commission’s majority suggestion as long as it provides reasons for not doing so.