Newfoundland and Labrador judges challenge pay hike rejection in court

ST. JOHN’S, N.L. – Judges in Newfoundland and Labrador are the latest across the country to legally challenge a province’s rejection of contentious, independently recommended pay hikes.

The provincial court judges say they’re by far the lowest paid among their counterparts in Canada. They also suggest they’re being unfairly singled out by a government wrestling with an unprecedented fiscal crisis.

“The zero per cent increase for judges is lower than increases received by public servants in the years 2013, 2014 and 2015,” says the application filed Wednesday in the Supreme Court of Newfoundland and Labrador.

It’s also lower than pay raises for the general population as tracked in average weekly earnings reports for the same period, it notes — especially before oil prices collapsed in mid-2014.

There were 23 full-time judges and five per diem judges as of April 2015, covering 15 circuit locations around the province. They are represented by the Newfoundland and Labrador Association of Provincial Court Judges.

They want the court to quash the government’s rejection of an independent tribunal’s call for retroactive increases. The three-person panel led by St. John’s lawyer Bradford Wicks advised retroactive raises totalling 14 per cent over four years starting in 2013 — an increase of $32,000 to almost $248,000 a year.

Provincial court judges now earn almost $216,000 compared to an Atlantic Canada average of about $242,000 last year. The highest paid provincial court judges in Canada include Alberta, at almost $294,000 and Ontario at $284,276, according to last year’s Sunshine List.

In Newfoundland and Labrador, the governing Liberals in May tabled a resolution — supported by opposition parties — stating the recommended raise is too rich as the province faces a projected $1.8-billion deficit. That financial shortfall is despite sweeping tax increases, fee hikes and job cuts in the spring budget that stoked angry protest.

The judges’ application, to be heard July 26, says the move violated constitutional principles of judicial independence. It also cites legislative changes in recent years that essentially allowed government to repeatedly breach mandated timelines for salary assessments.

The application seeks a court order requiring the tribunal’s recommendations be accepted.

“Meaningful and effective tribunal proceedings are constitutionally required,” it says. “Their purpose is to protect the public interest in an independent judiciary by depoliticizing the setting of judicial remuneration.

“The government may reject or vary the recommendations of a tribunal provided that legitimate reasons are given,” it says. “However, the government must act in good faith, demonstrate respect for the process and deal with the recommendations of the tribunal in a meaningful way.”

Luke Joyce, a provincial Justice spokesman, said officials within the department’s civil division are reviewing the application.

“We have no further comment at this time.”

The Supreme Court of Canada in 1997 ruled that the 1867 Constitution Act calls for a separate process to assess judicial pay. Provincial compensation commissions or tribunals usually include one provincial and one judicial nominee and a chairperson selected to represent both viewpoints.

Cases where provinces blocked related recommendations have repeatedly wound up in court.

Judges in British Columbia won a long-standing pay and pension dispute last fall when the Supreme Court of Canada refused to hear provincial arguments to overturn an appeal court ruling.

In that case, salary and pension recommendations were first made in a 2010 report by the Judges Compensation Commission but were rejected by the legislature the following year. A B.C. Supreme Court judge then directed the government to reconsider, but in 2014 the legislature blocked the recommendations again.

In a 2-1 ruling, the B.C. Court of Appeal said the judges were entitled to the added compensation. The majority said when the legislature dealt with the issue in 2014, it should not have considered more recent fiscal information, nor should it have given new reasons for its decision.

In Newfoundland and Labrador, the provincial court judges argue the province wrongly applied new financial circumstances to salary issues that should have been decided much earlier.

In the end, the province rejected the pay raise “based on updated information about its current fiscal position that would not have been available but for the government’s own delays in conducting past tribunal processes,” says the application.

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