Executive Summary: Key Legal and Evidentiary Issues

• Government’s response to the judicial remuneration tribunal’s recommendations lacked legitimacy and justification, failing to meet constitutional standards for judicial independence.

• The statutory amendments to the Provincial Court Act, which set judicial salaries by a formula based on the Maritime Average, were found insufficient to override the tribunal’s constitutional role.

• Government’s reasons for rejecting or varying tribunal recommendations, particularly regarding salary adjustment dates and retroactive interest rates, were not based on sound reasoning or a reasonable factual foundation.

• The unilateral reclamation of pooled Judicial Education Funds by Government was found to be without lawful authority and inconsistent with prior tribunal recommendations.

• The Court ordered Government to reconsider recommendations 1-6 of the tribunal report within sixty days, or those recommendations would automatically take effect.

• Immediate reinstatement of the reclaimed Judicial Education Funds was ordered, and the issue of costs was reserved for later determination.

Background and facts of the case

This judicial review was brought by the Judges of the Provincial Court of Newfoundland and Labrador, as represented by the Newfoundland and Labrador Association of Provincial Court Judges, along with individual judges, against His Majesty the King in Right of the Province of Newfoundland and Labrador (as represented by the Lieutenant-Governor in Council) and John Hogan, K.C., Minister of Justice and Public Safety and Attorney General. The matter was heard before Justice David G. Conway in St. John’s, Newfoundland and Labrador, on February 18-19, 2025, with the decision issued on July 10, 2025.

The Association sought a declaration that certain recommendations set out in the 2021 judicial remuneration tribunal report (“May Tribunal”) should be of full force and effect and that Government implement these recommendations. The Association also sought a declaration that Government acted without lawful authority and contrary to the accepted recommendation of a previous judicial remuneration tribunal in reclaiming judicial education funds.

There is a long and difficult history between the Association and Government concerning judicial pay and benefits. The Provincial Court Act, 1991, S.N.L. 1991, c.15, establishes a judicial remuneration tribunal process. In May 2022, the Act was amended to require that salaries for judges be adjusted annually based on the average salaries of Provincial Court judges in Nova Scotia, Prince Edward Island, and New Brunswick (“Maritime Average”), effective July 1, 2021, and in each year thereafter.

The May Tribunal, appointed by Order-in-Council on July 8, 2022, consisted of Stephen J. May, K.C. (Chairperson), Thomas Johnson, K.C. (on behalf of the Association, later replaced by Ian Patey), and Christopher Peddigrew, K.C. (on behalf of Government). The Tribunal held a public hearing on November 9-10, 2022, and delivered its report on November 30, 2022.

Tribunal process and recommendations

The May Tribunal’s report described its mandate, the historical context, and the impact of sections 27 and 28 of the Act. The Tribunal concluded that Government’s position on salaries and benefits was not consistent with the legislative role of the Tribunal and that the Maritime Average should not serve as the starting point for assessing the adequacy of judicial remuneration in the province. The Tribunal made recommendations relating to judicial salaries, salary differentials for the Chief Judge and Associate Chief Judge, the judicial professional allowance, and the payment of a proportion of the Association’s costs.

Government’s response and the issues

Section 28.2(4) of the Act required Government to approve, vary, or reject the tribunal report within sixty days of receipt and to provide reasons for varying or rejecting a report. In its response dated January 27, 2023, Government accepted the recommendations on the professional allowance and costs but rejected and varied the salary recommendations, substituting the statutory Maritime Average formula as per the Act, except for partly agreeing to the recommendation for the payment of interest on retroactive salary payments. Judges received a retroactive adjustment to their compensation on February 15, 2023, including the annual adjustments required as of July 1, 2021, and July 1, 2022.

Government also reclaimed pooled Judicial Education Funds in the amount of $130,583.24 that had been reserved prior to April 1, 2021. The Association argued that this reclamation was done without lawful authority and not in accordance with the Report or the previously accepted first Wicks Tribunal’s recommendation.

Court’s analysis and findings

Justice Conway applied the three-step Bodner analysis, which requires the Government to provide legitimate reasons for departing from the commission’s recommendations, supported by a reasonable factual foundation, and to demonstrate meaningful engagement with the tribunal process.

The Court found that Government’s reasons for rejecting or varying the tribunal’s recommendations, particularly regarding the April 1 versus July 1 salary adjustment date and the use of the Judgment Interest Act rate instead of the inflation rate for retroactive payments, were not legitimate or based on a reasonable factual foundation. The Court also found that the reclamation of Judicial Education Funds was not done appropriately and was inconsistent with the previously accepted first Wicks Tribunal’s recommendation that the funds “will be reserved in a pool.” The pooled Judicial Education Funds in the amount of $130,583.24 were existing and in place prior to the start of the May Tribunal process.

Outcome and remedy

The Court allowed the application for judicial review in part. It ordered that:

1. Recommendations 1-6 of the Report are remitted to Government for reconsideration. Government shall approve, vary, or reject recommendations 1-6 of the Report within sixty days of July 10, 2025.

2. If Government varies or rejects any of recommendations 1-6, it shall provide written reasons to the May Tribunal and the president of the Association for doing so.

3. If Government does not approve, vary, or reject recommendations 1-6 of the Report within sixty days of July 10, 2025, regardless of the reason, then recommendations 1-6 of the Report are deemed and declared to be of full force and effect.

4. Government shall reallocate the Judicial Education Funds in the amount of $130,583.24 to the Provincial Court of Newfoundland and Labrador immediately, for use in accordance with the recommendation of the first Wicks Tribunal.

5. The issue of costs can be subsequently addressed by the parties.

In summary, the Association of Provincial Court Judges was successful in obtaining orders for reconsideration of the tribunal’s recommendations and the immediate return of the reclaimed Judicial Education Funds in the amount of $130,583.24. The issue of costs remains to be determined at a later date.