Joe Thorne

How much does the rule of law cost?

That question may seem crude, but it is the practical reality of our constitutional system.

There are three branches of government: the judiciary, who interpret and enforce the law; the legislature, who make the law; and, the executive, who implement the law.

The judiciary are the gatekeepers of the rule of law, providing a crucial check and balance on both executive and legislative powers.

Yet, the executive and legislature are charged with spending public resources responsibly and in accordance with not only the public interests, but also the public’s wishes.

These competing priorities create tension when it comes to judges’ salaries. Calculating how to pay judges is uncomfortable math in our constitutional structure. Judges are public servants, paid out of the public purse. But they are not civil servants or employees of the government.

One component of the constitutional balance struck for these questions is salary and benefits tribunals – bodies independent of all three branches that make recommendations about judicial remuneration to government.

The salary and benefits tribunal is designed to set judicial remuneration in accordance with objective factors, including cost of living, relevant remuneration comparisons, and the fiscal capacity of government. This objective determination is then tested against the democratic will, with the executive branch deciding whether to disagree or agree with the tribunal in a resolution to the House of Assembly. Then, the legislature votes on whether to approve the remuneration resolution.

In Newfoundland and Labrador (Provincial Court) v. Newfoundland,¹ Justice Boone was tasked with determining whether this province’s provincial court judges were entitled to a declaration that the government had acted unconstitutionally by not implementing the recommendations of a salary and benefits tribunal.

Timeline

• June 4, 2019: The Newfoundland and Labrador Provincial Court Judges Salary and Benefits Tribunal (“Tribunal”) made its recommendations on judicial remuneration.
• June 2020: The executive recommended approval of the recommendations to the legislature. That motion was about to fail, until the Minister of Justice intervened and recommended a briefing before opposition members voted down the motion.
• September 14 to November 5, 2020: Fall sitting of the House of Assembly. Motion was not brought back to the legislature for debate.
• January to March 2021: Newfoundland and Labrador general election takes place.
• April 12 to June 23, 2021; Spring sitting of the House of Assembly. Motion was not brought back to the legislature for debate.
• October 18 to November 16, 2021: Fall sitting of the House of Assembly.
• February 21 and 22, 2022: The provincial judges’ application is heard by Justice Boone.
• March 24, 2022: Justice Boone’s decision is released – 2 years and 9 months after the Tribunal made its recommendation.

The decision

Unfortunately, judicial remuneration has resulted in a steady stream of litigation. As Justice Boone rightly put it, “the history of the remuneration process since 1991 has been fraught with difficulty.”²

The facts before Justice Boone were particularly interesting owing to the minority government in place. The tribunal made a recommendation to, among other things, increase provincial court salaries from $247,546.00 to $251,506.75 in 2019 and then another increase in 2020 to be determined in accordance with the increase in the Consumer Price Index.

Unlike previous iterations of this litigation, the executive agreed with the Tribunal and put forward a motion to approve the recommended increase. As stated by the Minister of Justice at the time, this was a constitutional obligation.

However, at that time, Newfoundland and Labrador had a minority government, and the opposition parties disagreed with the motion. The tension between the public interest and the public’s apparent wishes that has plagued judicial remuneration processes for decades reared its ugly head.

As Justice Boone put it, the result was an “unconstitutional politicization of the process”.³ At the Minister’s urging, debate on the resolution ceased for opposition members to receive a briefing.

Before the resolution was brought back to the House, the legislature was prorogued in advance of the March 2021 election – the result of which itself was delayed due to the COVID-19 pandemic.

Justice Boone determined that because the resolution was not brought back to the House after the election in the Fall 2021 sitting or the Spring 2022 sitting, there was a “preposterous delay” in bringing the resolution forward. This was ultimately determinative:

The conclusion that clearly follows from the preceding discussion is that both the executive and legislative branches have failed to fulfill their statutory obligations and constitutional duties to deal with the recommendations regarding judicial remuneration made by the 2017 Wicks Tribunal. Government now concedes this.

As a result of the concessions made during argument by Government counsel, there is no need to consider many of the extensive arguments articulated by the parties in their briefs. The only question remaining is the appropriate remedy for the failure of the executive and legislative branches to fulfill their constitutional and statutory obligations.⁴ 

Justice Boone ordered that:

• By April 14, 2022, the Minister of Justice and Public Safety shall present a Resolution in the House in the same terms as that presented in June 2020 recommending the implementation of the Tribunal recommendations;
• The resolution shall be voted on by no later than April 14, 2022; and
• If the vote does not approve the recommendations of the Tribunal, then counsel for the provincial court judges may immediately schedule a further date for argument on whether the Court should order the implementation of the Tribunal recommendations.

In so doing, Justice Boone ordered the harsh penalty of solicitor and client costs against the Government of Newfoundland and Labrador.

There appears to be light at the end of the tunnel as the parties have engaged in discussions to improve the process. Further, the House of Assembly Order Paper reveals that revisions to the Provincial Court Act, 1991 are expected.

One hopes that the history of lethargy that has plagued this process is a thing of the past. The rule of law is not simply an ideal to be admired – it requires practical actions to be fostered and preserved.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Litigation & Alternative Dispute Resolution group.

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¹ 2022 NLSC 47 (“Provincial Court v. NL”).
² Provincial Court v. NL at para 13.
³ Provincial Court v. NL at para 27.
⁴ Provincial Court v. NL at paras 35 – 36.