Nova Scotia Presiding Justices of the Peace Association v. Nova Scotia (Attorney General), (2013) 326 N.S.R.(2d) 312 (SC)

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 25, 2012
• Jurisdiction: Nova Scotia
• Citations: (2013), 326 N.S.R.(2d) 312 (SC);2013 NSSC 40

Presiding Justices v. N.S. (A.G.) (2013), 326 N.S.R.(2d) 312 (SC);

    1033 A.P.R. 312

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.003

Nova Scotia Presiding Justices of the Peace Association (applicant) v. Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondent)

(Hfx No. 366780; 2013 NSSC 40)

Indexed As: Nova Scotia Presiding Justices of the Peace Association v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Moir, J.

February 1, 2013.

Summary:

The Association representing all Justices of the Peace (JPs) in Nova Scotia applied for a declaration that the province's scheme for compensating JPs was unconstitutional as it failed to meet the standard required to ensure judicial independence. All JPs in Nova Scotia were part-time and were paid an hourly rate based on the salaries of Provincial Court judges. Procedurally, the Crown argued that the JPs could not sue the Crown and, even if they could, they would have to do so personally rather than through their association. On the merits, the province argued that since remuneration was tied to the salaries of Provincial Court judges, which were fixed on the recommendations of an independent commission, judicial independence for JPs was ensured.

The Nova Scotia Supreme Court declared the regulatory scheme to fix remuneration for JPs to be unconstitutional, as it failed to meet the standard to ensure judicial independence. The court stayed the declaration for 12 months to permit the province to take necessary action.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - The Association representing all Justices of the Peace (JPs) in Nova Scotia applied for a declaration that the province's scheme for compensating JPs was unconstitutional as it failed to meet the standard required to ensure judicial independence - The province argued that the Association lacked standing to bring the application; that the JPs would have to personally apply - The Nova Scotia Supreme Court held that the Association lacked the direct interest required to bring the application as of right - At issue was whether the Association should be granted public interest standing to bring the application on behalf of the JPs - The court granted public interest standing where the Association presented a serious justiciable interest, the Association had a genuine interest in the matter such as would justify the expenditure of judicial resources, and the Association applying on behalf of all JPs was the most reasonable and effective means of bringing the matter before the court - See paragraphs 26 to 53.

Constitutional Law - Topic 8655

Judges (incl. Justices of the Peace) - Independence - [See Courts - Topic 311 ].

Constitutional Law - Topic 8660

Judges (incl. Justices of the Peace) - Compensation - [See Courts - Topic 311 ].

Courts - Topic 287

Judges - Powers or jurisdiction - To sue Crown - The Association representing all Justices of the Peace (JPs) in Nova Scotia applied for a declaration that the province's scheme for compensating JPs was unconstitutional as it failed to meet the standard required to ensure judicial independence - The province argued that since the Crown could not sue itself, the JPs (acting on behalf of the Crown), could not sue the Crown - The Nova Scotia Supreme Court rejected the argument - The court stated that "judges are not, as judges, prevented from taking the Crown, in the sense of the government, to court" - See paragraphs 8 to 25.

Courts - Topic 310

Judges - Independence of judiciary - Requirements - [See Courts - Topic 311 ].

Courts - Topic 311

Judges - Independence of judiciary - Financial security - The Association representing all Justices of the Peace (JPs) in Nova Scotia applied for a declaration that the province's scheme for compensating JPs was unconstitutional as it failed to meet the standard required to ensure judicial independence - All JPs in Nova Scotia were part-time and were paid an hourly rate based on the salaries of Provincial Court judges - The province argued that since remuneration was tied to the salaries of Provincial Court judges, which were fixed on the recommendations of an independent commission, judicial independence for JPs was ensured by the "comparator" process - The Nova Scotia Supreme Court held that judicial independence required security of tenure, financial security and administrative independence - The "special process" to fix judicial remuneration, through an independent body that made recommendations, must be "independent, effective and objective" - There was no forum to discuss, review and make recommendations respecting the remuneration of JPs - The independent commission making recommendations respecting Provincial Court judges was independent, objective and effective as regards those judges, but it "is not 'representative' as regards the justices because they are not involved, it does not 'objectively consider ... submissions' about the justices' remuneration because it has no authority to do so, and its work is not 'effective' as regards the justices' remuneration because there is no consultative report on that subject. There is no report to government about justices' remuneration. There is, therefore, no response from government on justices' remuneration and no opportunity to compel a response or challenge an irrational response. ... Therefore, the regulation setting remuneration for Nova Scotia's presiding justices of the peace is unconstitutional. ... There is no forum that discusses the percentage, the exclusion of benefits, or the calculation of the hourly rate. Even if a link to a judge's salary were a substitute for a forum regarding a justice's remuneration, the regulation imposes important terms that fix remuneration without any special process." - The court stayed the declaration of unconstitutionality for 12 months to permit the province to take necessary action - See paragraphs 54 to 117.

Courts - Topic 1345

Justices of the Peace - Independence - Financial security - [See Courts - Topic 311 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See Civil Rights - Topic 8583 ].

Cases Noticed:

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2012), 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para.7].

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, refd to. [para. 9].

Attorney-General v. Times Newspaper Ltd., [1974] A.C. 273 (H.L.), refd to. [para. 12].

Reference Re Supreme Court Act Amendment, [1940] S.C.R. 49, refd to. [para. 12].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 12].

Cook v. Canada, [2007] B.C.J. No. 2556 (S.C.), refd to. [para. 13].

Lindsay v. Nova Scotia (Minister of Consumer Affairs) (1986), 76 N.S.R.(2d) 208; 189 A.P.R. 208 (T.D.), refd to. [para. 13].

Prohibitions Del Roy (1607), 12 Co. Rep. 63, refd to. [para. 15].

Smith v. Nova Scotia (Attorney General) (2004), 226 N.S.R.(2d) 344; 714 A.P.R. 344; 2004 NSCA 106, refd to. [para. 21].

Borowski v. Minister of Justice and Minister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 27].

Charlottetown (City) et al. v. Prince Edward Island et al. (1998), 168 Nfld. & P.E.I.R. 80; 517 A.P.R. 80 (P.E.I.C.A.), refd to. [para. 28].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 70].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 70].

New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286; 336 N.R. 201; 367 A.R. 300; 346 W.A.C. 300; 288 N.B.R.(2d) 202; 751 A.P.R. 202; 201 O.A.C. 293; 2005 SCC 44, refd to. [para. 82].

Ell et al. v. Alberta (2003), 306 N.R. 1; 330 A.R. 201; 299 W.A.C. 201; 2003 SCC 35, refd to. [para. 87].

Ontario Deputy Judges Association v. Ontario et al. (2006), 210 O.A.C. 94 (C.A.), refd to. [para. 90].

Masters' Association of Ontario et al. v. Ontario et al. (2011), 277 O.A.C. 332; 2011 ONCA 243, refd to. [para. 93].

Masters' Association of Ontario et al. v. Ontario et al., [2010] O.T.C. Uned. 3714; 2007 ONSC 3714, refd to. [para. 99].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (Looseleaf Ed.), vol. 1, p. 1-4 [para. 13].

Chitty, A Treatise of the Law of the Prerogative of the Crown and the Relative Duties of the Subject (1820), p. 76 [para. 11].

Halsbury's Laws of England (3rd Ed. 1954), vol. 7, p. 240, vol. 9, p. 344, note (b) [para. 11].

Wade, H. William R., Administrative Law (5th Ed. 1982), p. 564 [para. 13].

Counsel:

Peter M. Rogers, Q.C., for the applicant;

Alex M. Cameron, for the respondent.

This application was heard on April 25, 2012, at Halifax, N.S., before Moir, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 1, 2013.