Judicial Independence — Compensation of the
In August 2010 Platana J. of the Superior Court held that
certain provisions of the Courts of Justice Act
("CJA") governing the tenure
and compensation of Case Management Masters were unconstitutional
because they violated the principle of judicial independence. The
declaration of invalidity was suspended for 12 months to allow the
province to create a constitutional scheme. The Crown appealed the
compensation-related elements of the decision. The Masters
Association cross-appealed; it argued Case Management Masters
should be read into the scheme governing the compensation and
tenure of Traditional Masters (the latter's tenure and
promotion are essentially the same as provincial court judges).
Under the impugned regime, compensation of Case Management
Masters was set by an Order-in-Council so that their salaries would
be identical to those of public servants paid at the SMG3 level (a
senior classification).The Court of Appeal (the
"Court") dismissed the appeal and
concluded that this linkage mechanism was unconstitutional.
Drawing on the established jurisprudence regarding judicial
independence, the Court held that for a compensation scheme to
adhere to the constitutional principle of judicial independence
there must be a special process for dealing with judicial
remuneration, the process must be "independent, effective, and
objective," and there must be an independent body involved in
making recommendations regarding compensation to the executive.
In light of these principles Case Management Masters were not
required to receive identical compensation as provincial court
judges. However, the Court held that the absence of an independent
body acting as an "institutional sieve between the judiciary
and the other branches of government" meant the existing
scheme was unconstitutional. The Court concluded that an external
compensation metric that is ultimately set by the executive is
insufficient to preserve judicial independence. The Court also
noted that previous decisions have emphasized the need for a
consultation between an independent body, the judiciary, and the
executive in the process for formulating recommendations for
compensation. The Court held that a linkage structure does not
permit this process to "develop, unfold, and deliver."
The Court did acknowledge that comparisons with other public sector
employees can play a part in this broader process, but it concluded
that such comparators cannot be the sole determinant of
The Superior Court had held that s. 53(1) (b) of the
CJA was unconstitutional. The Court however, decided that
the statutory provision, which permits the Lieutenant-Governor to
make regulations regarding remuneration of Case Management Masters,
is constitutionally valid. Instead, the Court held that it was the
Order-in-Council that set out the compensation scheme at issue that
In dismissing the cross-appeal Court found it would be
inappropriate to dictate a solution to the government by having
Case Management Masters compensated in the same fashion as
Traditional Masters. The Court concluded that the appropriate
approach would be to extend the suspension of the declaration of
invalidity originally ordered by Platana J. for an additional 12
month period, given the difficulties in developing a constitutional
scheme in the face of an impending provincial election in October
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