A judges’ org alleged the government failed to engage with a commission’s pay hike recommendation
An association representing 1,400 federally appointed judges filed a federal lawsuit against the Government of Canada on Wednesday, alleging that it failed to adequately engage with an independent commission’s analysis when it rejected that commission’s recommendation to increase judicial salaries in November.
The Canadian Superior Courts Judges Association, which represents sitting and retired judges at superior and appellate courts across the country, claimed the government ignored new evidence on the salaries of private practice lawyers, which the independent commission relied on to advocate for higher judicial salaries that could attract more candidates to the bench.
By ignoring this evidence, the government disregarded the “rigorous analysis” by the Judicial Compensation and Benefits Commission and “thus subverts the constitutionally mandated process necessary to safeguard judicial independence,” the lawsuit claimed. The commission is tasked under the federal Judges Act to review the salaries of federally-appointed judges.
“While a decision to depart from a commission’s recommendation is owed deference, this is only the case if that decision is adequately justified and demonstrates a genuine engagement with the commission process. That is not the case here,” the judges’ lawsuit said. The lawsuit added that the federal government’s response to the commission’s salary hike recommendation “undermines the integrity of the commission process itself.”
The commission released its most recent report on judicial salaries in July. Its recommendations included increasing judicial salaries by $28,000, in addition to the annual adjustments made to judicial salaries in April based on Statistics Canada’s Industrial Aggregate Index, a measure of the average increase in weekly wages and salaries nationwide.
The commission’s report also recommended raising associate judges’ salaries from 80 percent to 95 percent of a puisne judge’s salary.
Wednesday’s lawsuit noted that in the last 20 years, the commission has only recommended one other time that judicial salaries be increased beyond the annual statutory adjustment based on the Industrial Aggregate Index.
On Nov. 3, however, the federal government rejected the commission’s recommendations, dismissing the commission’s argument that the state of judicial salaries made it difficult to fill judicial vacancies with talent from private practice. The government also cited slowed economic growth, new expenditures such as increased pay for military members, and potential public sector job losses among other factors.
The next day, the government released its first budget under Prime Minister Mark Carney, which included allocating $81.8 billion to the military over five years and reducing the size of the public service workforce.
The judges’ association argued that none of the reasons the government gave for rejecting the commission’s recommendations are legitimate. The association also alleged the government’s response does not “demonstrate meaningful engagement with the commission process or respect for the constitutional objectives it serves.”
According to the association, past commissions tasked with reviewing judicial salaries worked with incomplete data on private sector salaries because they only had access to income reported by unincorporated, self-employed lawyers, as provided by the Canada Revenue Agency. However, many lawyers receive income via a professional legal corporation.
Between 2022 and 2024, the government and judiciary coordinated to obtain the data on lawyers belonging to the latter category. The association argued that the resulting data affirmed longstanding concerns that past commissions had “significantly underestimated” the income of lawyers in private practice, which meant that they had assessed the adequacy of judicial salaries using an inaccurate comparator.
The association claimed that in its November response to the commission’s recommendation to correct judicial salaries, however, the government did not engage with “the significant gap between judicial salaries and the private sector comparator” revealed by the new data.
Addressing the government’s argument that slowed economic growth also weighed against increasing judicial salaries, the association alleged that the government could only rely on economic deterioration that occurred after the commission released its recommendations. However, the government invoked “several circumstances that arose before the commission issued its report,” the lawsuit said.
The association also asserted that the government believed statutory indexing alone guaranteed adequate judicial salaries. That belief, the association said, “would render the entire commission process redundant and deprive its recommendations of the ‘meaningful effect’ required by the Constitution.”
Asking for the court to set aside the government’s November response, the association argued that allowing the response to stand “would signal that governments may treat the constitutionally required commission process as a mere procedural formality, undermining the commission’s essential role in safeguarding judicial independence.”
In a statement to Canadian Lawyer on Wednesday, Minister of Justice and Attorney General of Canada spokesperson Lola Dandybaeva said, “After reviewing the commission’s recommendations and as reflected in the government’s public response, the government decided not to move forward with an additional increase to judicial salaries. Current compensation for judges’ salary and benefits already includes annual indexation and pensions."
Dandybaeva added, "Having just received the application, we are currently reviewing it and it would be inappropriate to comment further at this time.”
A spokesperson for the association declined to comment.
Editor's Note: This story has been updated with Dandybaeva's comment.
