On Judges’ Pay Resolution, “The World has Changed”

As Health Minister John Haggie declared, “the world has changed.” His colleagues in the Liberal cabinet have not yet caught up with this news.

The Liberal government is sleepwalking through the current fiscal and economic crisis. During the June sitting, Minister of Justice Andrew Parsons introduced a motion in the House of Assembly to approve a pay raise for the province’s Provincial Court judges. I spoke against the resolution, pointing out that the judges’ pay Tribunal heard evidence of our pre-COVID fiscal condition which is now badly out of date. “We have run out of time,” as the Premier told the Prime Minister.

Government’s best defence against the potential judges’ legal action feared by the Minister is to demonstrate awareness of the scope and severity of the post-COVID fiscal and economic crisis and implement measures to deal with it.

As Health Minister John Haggie declared on the same day Justice Minister Parsons moved the resolution, “the world has changed.” His colleagues in the Liberal cabinet have not yet caught up with this news.

Before the COVID-19 tsunami hit in March, members of the PC caucus would have had no issue with implementing the recommendations of the independent Tribunal. As required by law, the Tribunal considered detailed evidence on surrounding fiscal and economic circumstances, and recommended a modest, and on the evidence before it, reasonable adjustment to pay and benefits. But Tribunal findings based on that evidence are now stale. To recall Minister Haggie’s words, “the world has changed.”

If defenders of raises for judges like Liberal frontman John Samms (“Rushing to Judgement on Judges’ Salaries”) wish to cast blame for the controversy which has erupted, they should look to the Minister of Justice, who inexplicably delayed bringing forward the required resolution a full year after he received the Tribunal’s report.

In legal circles, there is a word for tardiness that has consequences: negligence!

Minister Parsons has attempted to justify the resolution in favour of a raise by relying on the previous court decision, Newfoundland and Labrador Association of Provincial Court Judges v Newfoundland and Labrador, 2018 NLSC 140, which in the wake of the infamous 2016 Liberal budget, rejected his ill-conceived attempt to turn down a previous Tribunal recommendation on judges’ pay. After the government turn-down the judges appealed to the Supreme Court, Trial Division, and Parsons lost the case. He lost the case not because serious fiscal concerns cannot be weighed in constitutional litigation, but because the government’s response to the fiscal situation was irrational.

The Trial Division Court stated: The government has failed… to make a rational connection between the problem identified, the fiscal pressures facing the government, and its proposed freeze of judges’ salaries. It has singled out judges as the only group to experience a salary freeze… It has not outlined a comprehensive program for expenditure reduction…

The absence of any appeal shows that Minister of Justice Parsons agreed with the court’s criticism—his government’s case was irrational and unsupported by the evidence, making any appeal unlikely to succeed.

The Liberal government has deferred Parson’s June resolution to give judges the raise recommended by the Tribunal, with a vote to take place sometime in the future.

If the government wants guidance on how to defend rejection of a judges’ pay recommendation in a situation of fiscal crisis, it should study the case developed by a previous Liberal government under Premier Clyde Wells. Judges’ pay was not directly in issue, but the relevance of severe fiscal crisis to constitutionally protected rights squarely was.

In Newfoundland vs. Nape 2004, SCC 66, the Supreme Court of Canada upheld the constitutionality of a legislated expenditure reduction program which took aim at a collective agreement on pay equity. Government had agreed to make a payment to redress systemic gender discrimination for work performed by employees in female-dominated occupations. Three years later the same government passed the Public Sector Restraint Act in order to erase three years of pay equity arrears and save $24 million.

Pay equity was not the only casualty of the Wells government’s fiscal crisis. Other measures included a freeze on pay for public sector workers both unionized and non-unionized, frozen and reduced budgets for ABCs, closure of 360 hospital beds, frozen educational grants, government-wide reductions in operating budgets, elimination of programs, reduction in executive and management positions, widespread layoffs, and termination of dental and vision coverage. Of high importance, the province was also threatened by loss of credit rating.

Justice Binnie spoke for a unanimous Supreme Court in concluding at para 62: It seems to me the severity of these measures, including the cut to pay equity, corroborated the government’s statement that it believed itself, on reasonable grounds, to be in the middle of a fiscal crisis. The Supreme Court held that expenditure reduction and the allocation of the reductions was reasonable and demonstrably justified in relation to other values of a free and democratic society.

I mention the pay equity case not to diminish the fundamental justice of pay equity, or to suggest that any of the austerity measures of the Wells government are appropriate today, but to show that courts will defer to severe fiscal considerations if government lays out the facts and implements a plan—which the present Liberal government is derelict in doing. The government is sleepwalking through a severe fiscal and economic crisis. It has no plan to deal with the crisis except to plead for help from Ottawa, while pretending that government spending should carry on as usual.

If the Liberal Minister of Finance will not even reveal to the public the true depth of the fiscal crisis, how can he and the Minister of Justice hope to persuade a court?

Judicial independence is a fundamental constitutional value. Minister Parsons should respect the intelligence of members of the legislature and their ability to comprehend constitutional protections by bringing back the resolution on judges’ pay, after debate on the budget in the fall, when the legislature can evaluate the judges’ pay resolution in its entire economic and fiscal context. Then we can make a decision based on right legal principle that the judges, the people and the courts can understand.

Ches Crosbie QC is MHA for Windsor Lake and Official PC Opposition Leader.

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