Mackin, P.C.J. v. New Brunswick (Minister of Finance), (1998) 202 N.B.R.(2d) 324 (TD)

• Judge: Deschênes, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 06, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 202 N.B.R.(2d) 324 (TD);1998 CanLII 9800 (NB QB);202 NBR (2d) 324;[1998] NBJ No 267 (QL);21 CPC (4th) 29;516 APR 324

Mackin, P.C.J. v. N.B. (1998), 202 N.B.R.(2d) 324 (TD);

    202 R.N.-B.(2e) 324; 516 A.P.R. 324

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.B.R.(2d) TBEd. JL.018

Ian P. Mackin (plaintiff) v. Her Majesty the Queen in right of the Province of New Brunswick as represented by the Minister of Finance (defendant)

(F/C/434/95)

Indexed As: Mackin, P.C.J. v. New Brunswick (Minister of Finance)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Deschênes, J.

July 6, 1998.

Summary:

Mackin, P.C.J, sued the provincial Minister of Finance seeking damages and declaratory relief. Mackin, P.C.J., asserted that the pension scheme for Provincial Court judges and the removal of the supernumerary des­ignation for Provincial Court judges were unconstitutional. He also sought legal ex­penses incurred by him in responding to a complaint by the Minister of Justice.

The New Brunswick Court of Queen's Bench, Trial Division, declared that the repeal of the supernumerary status was unconstitutional, but suspended the declar­ation until such time as the issue was dealt with through the commission process re­ferred to by the Supreme Court Canada in Reference Re Remuneration of Judges of the Provincial Court (P.E.I.). The court ordered the legal expenses of Mackin, P.C.J., relating to the Minister of Justice's complaint to be paid. The court dismissed the claim for damages and other declaratory relief. The court awarded Mackin, P.C.J., party and party costs.

Editor's note: for related decisions involving the same parties see: 176 N.B.R.(2d) 321; 447 A.P.R. 321; 183 N.B.R.(2d) 223; 465 A.P.R. 223; 187 N.B.R.(2d) 224; 478 A.P.R. 224; 193 N.B.R.(2d) 52; 493 A.P.R. 52; [1996] N.B.R.(2d) (Supp.) No. 108 (Q.B.).

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - [See second Civil Rights - Topic 3135 ].

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to indepen­dent and impartial tribunal - The Province of New Brunswick amended the Provincial Court Act to eliminate supernumerary status for Provincial Court judges - Mackin, P.C.J., asserted that the amend­ment was unconstitutional as it infringed his security of tenure thereby affecting his judicial independence - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the right to elect supernu­merary status was an aspect of security of tenure - Security of tenure meant that a Provincial Court judge, until he reached retirement age, could only be removed for cause related to capacity to perform judi­cial functions and only after having a full opportunity to be heard at a judicial in­quiry - The elimination of the supernu­merary status did not constitute removal from office prior to the completion of retirement age - See paragraphs 20 to 26.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to indepen­dent and impartial tribunal - The New Brunswick Court of Queen's Bench, Trial Division, declared that the elimination of supernumerary status for Provincial Court judges was unconstitutional because the Province failed to follow the process of an independent commission as formulated by the Supreme Court of Canada in Reference Re Remuneration of Judges of the Provin­cial Court (P.E.I.) - The court suspended the declaration until the issue was dealt with through the commission process - Additionally, the repeal of the supernu­merary status was done arbitrarily without genuine consultation and the absence of a grandfather clause to protect the position of incumbent judges was unfair - See paragraphs 26 to 36.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to indepen­dent and impartial tribunal - Mackin, P.C.J., elected to become a supernumerary and not retire - He was required to make pension contributions despite having reached the maximum pension - The pen­sion contributions were the same as public service employees and the annuities were integrated with CPP - Mackin, P.C.J., asserted that the pension scheme was un­constitutional because it was not in ac­cordance with standard widely used and generally accepted pension schemes and was discriminatory - He also asserted that it breached his financial security by re­quiring continued contributions after full eligibility was achieved - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, rejected the assertions - See para­graphs 37 to 61 and 67 to 76.

Civil Rights - Topic 5502

Equality and protection of the law - Gen­eral principles and definitions - Whether right to equality abridged - [See third Civil Rights - Topic 3135 ].

Civil Rights - Topic 5658

Equality and protection of the law - Par­ticular cases - Pension legislation - [See third Civil Rights - Topic 3135 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or acts - General principles - Declaration of in­validity - [See second Civil Rights - Topic 3135 ].

Constitutional Law - Topic 8655

Judges - Independence - [See all Civil Rights - Topic 3135 ].

Constitutional Law - Topic 8656

Judges - Tenure - [See first Civil Rights - Topic 3135 ].

Constitutional Law - Topic 8660

Judges - Compensation - [See second and third Civil Rights - Topic 3135 ].

Courts - Topic 308

Judges - Independence of judiciary - What constitutes interference with - The Minister of Justice filed a complaint of misconduct against Mackin, P.C.J. - The complaint was dismissed as premature - Although not mandated by legislation, the Minister normally provided or paid for the legal expenses incurred in responding to a com­plaint - The Minister refused to pay the expenses incurred by Mackin, P.C.J., be­cause the matter was not referred to an inquiry - The New Brunswick Court of Queen's Bench, Trial Division, ordered the Minister to pay all reasonable legal ex­penses, stating that the absence of such an obligation on the government would seri­ously jeopardize or diminish public con­fidence in judicial impartiality and in­dependence - See paragraphs 17, 18.

Courts - Topic 311

Judges - Independence of judiciary - Fi­nancial security - [See second and third Civil Rights - Topic 3135 ].

Courts - Topic 312

Judges - Independence of judiciary - Security of tenure - [See first Civil Rights - Topic 3135 ].

Courts - Topic 460

Judges - Discipline - Costs - [See Courts - Topic 308 ].

Practice - Topic 7029

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Novel or important point - Mackin, P.C.J, sued the provincial Minister of Finance seeking, inter alia, damages and declarato­ry relief - The New Brunswick Court of Queen's Bench, Trial Division, declared that the repeal of super­numerary status was uncon­stitutional, but suspended the declar­ation until the issue was dealt with by an in­dependent commis­sion - The court dis­missed the claims for damages and other declaratory relief - The court allowed Mackin, P.C.J.'s, claim for legal expenses relating to a complaint against him - Al­though the majority of the claims were denied, the court granted Mackin, P.C.J., party and party costs given the case's complexity and importance to mem­bers of the judiciary and public - See paragraphs 77 to 83.

Practice - Topic 7035.1

Costs - Party and party costs - Entitle­ment to - Against the Crown or govern­mental bodies - [See Practice - Topic 7029 ].

Statutes - Topic 5367

Operation and effect - Delegated legisla­tion - Regulations - Validity of - Ultra vires - Where purpose authorized by em­powering statute - CPP contributions and benefits of all New Brunswick public service employees were integrated - With respect to judges the integration formula was contained in Regulation 84-104 passed pursuant to s. 23(1)(j) of the Provin­cial Court Act - The Regulation dealt with a reduc­tion of a judge's annuity and not a con­sequential reduction in contributions - Mackin, P.C.J., asserted that the Regula­tion was unconstitutional because s. 23(1)(j) only authorized a regulation which pro­vided for both a reduction in benefits and a con­sequential reduction in contributions -The New Brunswick Court of Queen's Bench, Trial Division, rejected the asser­tion - Section 23(1)(j) authorized the adop­tion of a regulation which might deal with both contributions and benefits to be inte­grated, but did not compel it - A regula­tion deal­ing with integration of judge's con­tribu­tions was unnecessary as the Act provided for it - See paragraphs 62 to 66.

Statutes - Topic 6903

Operation and effect - Commencement, duration and repeal - Repeal - Preserva­tion of rights acquired or accrued under re­pealed statute - [See second Civil Rights -Topic 3135 ].

Cases Noticed:

Ruffo v. Québec (Ministre de la Justice), [1997] A.Q. No. 3658 (Sup. Ct.), refd to. [para. 18].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; [1997] 10 W.W.R. 417; 150 D.L.R.(4th) 577, appld. [para. 20].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 49 C.R.(3d) 97; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161; 37 M.V.R. 9; 19 C.R.R. 354, refd to. [para. 26].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481; 26 C.R.R. 59, refd to. [para. 26].

British Columbia (Provincial Court Judge) v. British Columbia (1997), 40 B.C.L.R.(3d) 289 (S.C.), refd to. [para. 35].

Craig v. British Columbia - see British Columbia (Provincial Court Judge) v. British Columbia.

Reference Re Independence and Impartial­ity of Judges of the Provincial Court (P.E.I.) (1995), 130 Nfld. & P.E.I.R. 29; 405 A.P.R. 29; 124 D.L.R.(4th) 528 (P.E.I.C.A.), refd to. [para. 59].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 71].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, appld. [para. 72].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380; 138 D.L.R.(4th) 647; 110 C.C.C.(3d) 223; 22 M.V.R.(3d) 251, appld. [para. 73].

Sirois v. Centennial Pontiac Buick GMC Ltd. and General Motors of Canada Ltd. (1988), 89 N.B.R.(2d) 244; 226 A.P.R. 244 (C.A.), refd to. [para. 77].

Statutes Noticed:

Provincial Court Act, R.S.N.B. 1973, c. P-21, sect. 23(1)(j) [para. 63].

Provincial Court Act Regulations (N.B.), Regulation 84-104, sect. 3(3) [para. 64].

Authors and Works Noticed:

Canada, Department of Justice, Report and Recommendations of the 1995 Commis­sion of Judges' Salaries and Benefits (September 1996), pp. 21, 22 [para. 61].

Schmeiser, Douglas E., and McConnell, Howard W., The Independence of Prov­incial Court Judges: A Public Trust (1996), p. 27 [para. 48].

Counsel:

J. Brent Melanson, for the plaintiff;

Bruce Judah, Q.C., and Marie Bérubé, for the Province of New Brunswick.

This case was heard before on March 18 and 19, 1998, before Deschênes, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Frederic­ton, who delivered the following decision on July 6, 1998.