In their court battle over pay raises, judges and Ottawa disagree on nearly everything

OTTAWA — Not only do federally appointed judges and the Carney government disagree on whether judges should get a raise, they don’t even agree on who should hear the court challenge on the issue.

The various procedural disagreements in the first few months of the lawsuit between the association representing judges and the Liberal government who appoints and pays them show just how contentious the unprecedented case is.

At issue in the lawsuit : did the government properly justify its decision to outright reject an independent commission’s recommendation to give judges a $28,000 to $36,000 raise on top of their nearly $400,000 salary as of April 1, 2024?

Judges say no and are asking the court to send the government back to do its homework again. The government says it did its due diligence in explaining that it would be uncouth to offer such a raise at a time of economic uncertainty.

It’s the first time a group representing judges is taking the government to court over the compensation regime that was put in place in 1999.

Last year, the commission tasked with reviewing judicial compensation said that a salary of nearly $400,000 in 2024 was “inadequate” and didn’t make the job attractive to top applicants. It recommended the government increase judges’ salaries by $28,000 for most and $36,000 for the chief justice of the Supreme Court.

Just under 1,200 judges sitting at all levels of court across the country and on the Supreme Court of Canada would be in line for the raises.

The Canadian Superior Courts Judges Association (CSCJA) — which represents over 1,400 sitting and retired judges — sued when the government rejected the recommendation. In December the association asked Justice Minister Sean Fraser to immediately refer the case to the Supreme Court in order to shorten the process.

But in a statement to National Post, Fraser’s spokesperson, Jeremy Bellefeuille, confirmed that the minister was going to let the process play out at the trial court.

“We’re proceeding with the (judicial review) in Federal (Court), and there is no record of us asking the Supreme Court of Canada to hear the matter,” Bellefeuille said.

A spokesperson for the CSCJA said the association respects the minister’s decision. “We thought that such a reference may be less time consuming and less costly,” Stephanie Lockhart said in an email to National Post.

Then in March, the parties battled over who should even hear the Federal Court case.

In a March 24 letter to the court, Elizabeth Richards — the government’s chief general counsel — suggested the court appoint a deputy judge who had retired before the hotly debated raise would kick in (April 2024) so as to avoid any “public perception of bias.”

A deputy judge is a current or former justice from another court who is exceptionally appointed to hear a case at a different tribunal.

“To the extent possible, this will minimize the potential appearance of conflict or address any reasonable public perception of bias that would arise from a current judge of the Federal Court — who has a pecuniary interest in the review of the Government’s Response to the Judicial Compensation and Benefits Commission’s Report on judicial salaries — adjudicating this case,” Richards wrote to the court.

The government’s request ruffled the judges’ association’s feathers.

In a reply the next day, counsel for the Canadian Superior Courts Judges Association argued that the government’s request is an indirect accusation of bias against Federal Court judges and should be rejected.

“The (Attorney General) invokes the appearance of conflict and the perception of bias, yet stops short of formally bringing a recusal application,” wrote association lawyer Jean-Michel Boudreau.

“If the (Attorney General) genuinely believes that all judges of the Federal Court are disqualified from hearing this matter, the appropriate and transparent remedy was to bring a formal application to that effect, not to seek the indirect substitution of a judge,” he added.

Furthermore, appointing a deputy justice at the Federal Court does not solve government’s concerns in the long-term if the case progresses to a three-judge appeal panel or a nine-judge Supreme Court hearing, Boudreau wrote.

The association representing associate judges of the Federal Court also wrote the court in support of their colleagues’ position.

Ultimately, the Federal Court appointed Alexandra Hoy as deputy justice to hear the case, according to a recording of a May 21 hearing. Hoy was the Associate Chief Justice of Ontario for seven years and retired from the Ontario Court of Appeal on Oct. 1, 2023.

When asked why the acting chief justice opted to appoint a deputy justice in the case, Federal Court spokesperson Catou MacKinnon said the organization does not comment on matters before the court.

In a statement, CSCJA spokesperson Stephanie Lockhart said the group had “no objection” to Hoy’s appointment.

Bellefeuille, the justice minister’s spokesperson, declined to comment on Hoy’s appointment.

The hearing for the lawsuit is scheduled for September.

National Post

cnardi@postmedia.com

• Judges sue federal government over decision to refuse $28,000 raise
• Report finds judges' $414,900 salary 'inadequate' to attract top talent, recommends $28,000 raise

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