Judges of the Provincial Court (Man.) v. Manitoba et al., 2013 MBCA 74

JudgeMonnin, Steel and Beard, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateDecember 13, 2012
JurisdictionManitoba
Citations2013 MBCA 74;(2013), 294 Man.R.(2d) 273 (CA)

Provincial Court Judges v. Man. (2013), 294 Man.R.(2d) 273 (CA);

      581 W.A.C. 273

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. SE.003

The Judges of The Provincial Court of Manitoba, as represented by the Provincial Judges' Association of Manitoba, as represented by Judge Christine Harapiak, Judge Lee Ann Martin, Judge John Combs, Judge Mary Kate Harvie, Judge Shauna Hewitt-Michta, Judge John Guy, Judge Lawrence Allen, Judge Linda Giesbrecht, Judge Krystyna Tarwid, Chief Judge Ken Champagne and Associate Chief Judge Murray Thompson (applicants/respondents) v. Her Majesty The Queen In Right Of The Province Of Manitoba and The Honourable Andrew Swan, Minister of Justice (respondents/appellants)

(AI 12-30-07822; 2013 MBCA 74)

Indexed As: Judges of the Provincial Court (Man.) v. Manitoba et al.

Manitoba Court of Appeal

Monnin, Steel and Beard, JJ.A.

August 21, 2013.

Summary:

Under the Provincial Court Act (Man.), a Judicial Compensation Committee (JCC) was appointed to make recommendations respecting salaries and benefits to be paid to Provincial Court judges for the fiscal years 2008, 2009 and 2010. The government either refused to adopt or failed to consider the JCC's recommendations. The judges applied for a determination of their rights, various forms of declaratory relief and an order to compel the government to implement certain recommendations of the JCC.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 276 Man.R.(2d) 265, allowed the application and ordered the government to pay the judges' costs. The judges sought solicitor and client costs. The government asserted that costs should be paid on a party and party basis.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 279 Man.R.(2d) 143, held that the judges were entitled to costs on a solicitor and client basis. The government appealed from the decision allowing the judges' application and from the costs decision.

The Manitoba Court of Appeal dismissed the appeal.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The government appealed - The Manitoba Court of Appeal discussed the standard of review - The standard to be applied by a court reviewing a government's response to a judicial compensation committee's recommendations was "one of simple rationality" - It was a deferential, limited form of review - On the appeal, the court's task regarding the major ground of appeal was to determine whether Oliphant, J., correctly applied the legal test set out in New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice) (2005 S.C.C.) - If Oliphant, J., committed palpable or overriding error regarding the facts and evidence, this would also justify intervention - Oliphant, J.'s decision on costs was a discretionary one and would not be varied unless he had proceeded on a wrong principle, a misapprehension of the evidence or the decision was clearly unjust - See paragraphs 42 to 45.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The Manitoba Court of Appeal dismissed the government's appeal - Both parties agreed that the legal test applicable to the matters was that set out in New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice) (2005 S.C.C.) - The court discussed the test, which was composed of three parts: (1) had the government articulated a legitimate reason for departing from the commission's recommendations? (2) did the government's reasons rely on a reasonable factual foundation? and (3) viewed globally, had the commission process been respected and had the purposes of the commission been achieved? - The reviewing court was to conduct a limited, deferential review and determine whether the government's reasons for not following the recommendations of the committee were rational - The reasons would be rational where there existed evidence of a reasonable factual foundation for the government's decision to depart - The evidence had to be viewed globally and not piece by piece - See paragraphs 46 to 57.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The Manitoba Court of Appeal dismissed the government's appeal - The court rejected the government's assertion that Oliphant, J., had erred by concluding that the degree of deference to be shown by the court to the government's actions depended on, and was proportional to, the degree to which the government had participated in the process - There was no error there - Oliphant, J., was reflecting the fact that the court was analyzing the process as a whole and trying to determine whether the government participated wholeheartedly and effectively in the process or whether its actions simply showed that it "was going through the motions" - See paragraphs 64 to 73.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee (JCC) made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The Manitoba Court of Appeal dismissed the government's appeal - The court agreed with Oliphant, J., that the government's reasons for rejecting the JCC salary recommendations did not meet the level of simple rationality - The reasons were conclusory, were not supported by a factual foundation and did not come to grips meaningfully with the JCC recommendations - In many ways, they were simply a repetition of the arguments that the government had made in front of the JCC - To constitute legitimate reasons, the government could not simply reiterate earlier submissions that were made to, and substantively addressed by, the JCC - Bald expressions of disapproval were inadequate, as were simple statements that salary increases were unfair or unreasonable in the current economic climate - The government had to explain why - The court reviewed the government's reasons for rejecting the JCC recommendations individually and as a whole - See paragraphs 74 to 113.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee (JCC) made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The JCC also recommended that interest be paid on the retroactive salary adjustments - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The Manitoba Court of Appeal dismissed the government's appeal - The court rejected the government's argument that the JCC had acted beyond its jurisdiction in awarding interest where there was no inherent right to interest and interest was not part of the definition of "salary" or "benefit" in the Provincial Court Act - Even where a statute did not expressly authorize the payment of interest, that power could be implied from the wording of the statute and the structure and purpose of the statutory body - Taking into account the nature of interest as described in the case law, as well as the cases dealing with other tribunals that made compensatory orders and the nature and purpose of the JCC, the court concluded that the JCC had interpreted its jurisdiction in a reasonable manner and had exercised its discretion both to recommend interest and to recommend that it be payable as of certain dates - The government's reasons for rejecting the interest award did not satisfy the standard of simple rationality - The payment of interest was to be seen as making a remedy whole, rather than as a punitive order - The government had had the use of the judges' money in the intervening period - See paragraphs 114 to 148.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee (the 2008 JCC) made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations - The Manitoba Court of Appeal dismissed the government's appeal - The court rejected the government's assertion that Oliphant, J.'s failure to remit the matter to the legislature was an error of law - In New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice) (2005 S.C.C.), the court made it clear that, where a reviewing court found that the government's reasons for rejecting a judicial compensation committee's recommendations were flawed, the typical remedy was to remit the matter to the legislature - In exceptional circumstances, however, the typical remedy was not appropriate - Those circumstances could include a lack of good faith, as was found here - Further, timeliness was a consideration - Finally, in July 2012, the 2011 JCC had made recommendations for the years 2011 to 2014, which had been accepted by the government as base salary levels - Significantly, those recommendations were based on salaries as found by the 2008 JCC - Impliedly, by accepting the 2011 JCC base salary, the government had already accepted the 2008 JCC base salary levels - Nothing would be gained by sending the matter back to the legislature - See paragraphs 149 to 162.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations and to pay the judges' costs on a solicitor and client basis due to the government's "reprehensible" conduct before the commencement of the litigation - The Manitoba Court of Appeal dismissed the government's appeal - Solicitor and client costs were only awarded in rare and exceptional cases where the conduct of the party against whom the award was sought was "scandalous, outrageous or reprehensible" - While a rigid rule was not necessary, solicitor and client costs were not generally awarded as a reaction to the conduct giving rise to the litigation, but were intended to censure behaviour related to the litigation - Circumstances where solicitor and client costs could be awarded for pre-litigation conduct included issues of public interest, situations where the fruits of the litigation did not provide appropriate compensation and situations where the principle of indemnification for the wrongdoing justified such an order - In situations similar to the one here, solicitor and client costs had been awarded based on conduct surrounding the government's response to compensation committee reports - However, courts should be careful to avoid double compensation and not to punish, by way of costs, pre-litigation conduct that could be the subject of other relief - See paragraphs 163 to 179.

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - Under the Provincial Court Act (Man.), a Judicial Compensation Committee (the JCC) made recommendations respecting salary increases for Provincial Court judges and salary differentials for administrative judges for the fiscal years 2008, 2009 and 2010 - The government rejected the recommendations - Oliphant, J., ordered the government to implement the recommendations and to pay the judges' costs on a solicitor and client basis due to the government's "reprehensible" conduct before the commencement of the litigation - The Manitoba Court of Appeal dismissed the government's appeal - Oliphant, J., relied on several actions by the government to conclude that it had not taken the JCC seriously and had not fully participated in the process and was, therefore, deserving of reproof and rebuke - Based on those findings of fact, he made a discretionary decision to award solicitor and client costs - There was no palpable and overriding error, error in principle or clear injustice that would justify intervention with those findings or that discretionary decision - See paragraphs 180 to 200.

Practice - Topic 7408

Costs - Solicitor and client costs - General principles - Solicitor and client costs as damages or punishment - [See seventh and eighth Courts - Topic 430 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See seventh and eighth Courts - Topic 430 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - [See seventh and eighth Courts - Topic 430 ].

Statutes - Topic 4806

Operation and effect - Enabling acts - General principles - Powers included in enabling act by implication - [See fifth Courts - Topic 430 ].

Statutes - Topic 4949

Operation and effect - Enabling Acts - Powers - General - Jurisdiction of boards and tribunals - [See fifth Courts - Topic 430 ].

Cases Noticed:

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. 2].

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. 4].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 45].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 45].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 45].

Aalto et al. v. Canada (Attorney General), [2012] 1 F.C.R. 290; 405 N.R. 225; 2010 FCA 195, refd to. [para. 86].

Bank of America Canada v. Mutual Trust Co. et al., [2002] 2 S.C.R. 601; 287 N.R. 171; 159 O.A.C. 1; 2002 SCC 43, refd to. [para. 124].

Alberta v. Nilsson (2002), 320 A.R. 88; 288 W.A.C. 88; 2002 ABCA 283, refd to. [para. 125].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 127].

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 127].

Nishnawbe Aski Nation et al. v. Eden (2011), 281 O.A.C. 102; 104 O.R. (3d) 321; 2011 ONCA 187, refd to. [para. 129].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 130].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 130].

Sciberras v. Workers' Compensation Board (Man.) (2011), 262 Man.R.(2d) 277; 507 W.A.C. 277; 2011 MBCA 30, refd to. [para. 130].

Public Service Commission (N.S.) v. Nova Scotia Government and General Employees Union (2004), 223 N.S.R.(2d) 57; 705 A.P.R. 57; 2004 NSCA 55, refd to. [para. 133].

Tilley v. Workers' Compensation Commission (Nfld.) (1990), 85 Nfld. & P.E.I.R. 358; 266 A.P.R. 358 (Nfld. T.D.), refd to. [para. 133].

Canada (Attorney General) v. Morgan and Canadian Human Rights Commission (1991), 135 N.R. 27 (C.A.), refd to. [para. 134].

Manitoba v. Russell Inns Ltd. et al. (2013), 291 Man.R.(2d) 244; 570 W.A.C. 244; 2013 MBCA 46, refd to. [para. 135].

Conférence des Juges du Québec v. Québec (Procureur général) (2000), 196 D.L.R.(4th) 533 (Que. C.A.), refd to. [para. 142].

Procureur général du Québec v. Conférence des juges du Québec, [2004] Q.J. No. 6622 (C.A.), refd to. [para. 143].

Québec (Procureur général) v. Conférence des juges du Québec, 2007 QCCA 1250, refd to. [para. 153].

New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice and Consumer Affairs) (2009), 347 N.B.R.(2d) 296; 894 A.P.R. 296; 2009 NBCA 56, refd to. [para. 156].

Fernandez v. Tan, [2009] Man.R.(2d) Uned. 60; 2009 MBCA 113, refd to. [para. 164].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 165].

Agritrans Logistics Ltd. (Bankrupt), Re (2005), 195 Man.R.(2d) 47; 351 W.A.C. 47; 2005 MBCA 68, refd to. [para. 165].

Quebec (Attorney General) v. Lacombe et al., [2010] 2 S.C.R. 453; 407 N.R. 1; 2010 SCC 38, refd to. [para. 165].

N.B. v. Director of Child and Family Services (Man.) et al. (1999), 134 Man.R.(2d) 261; 193 W.A.C. 261 (C.A.), refd to. [para. 174].

Pelley v. Pelley et al. (2003), 221 Nfld. & P.E.I.R. 1; 661 A.P.R. 1; 2003 NLCA 6, leave to appeal denied (2004), 329 N.R. 199; 246 Nfld. & P.E.I.R. 46; 731 A.P.R. 46 (S.C.C.), refd to. [para. 175].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 175].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 175].

Larter et al. v. Solid Rock Free Lutheran Church of Camrose et al., [2012] A.R. Uned. 502; 2012 ABCA 292, refd to. [para. 175].

Oz Optics Ltd. v. Timbercon Inc., [2012] O.A.C. Uned. 588; 2012 ONCA 735, refd to. [para. 176].

Sidhu et al. v. Kooner et al., [1999] O.A.C. Uned. 205 (C.A.), refd to. [para. 176].

Barry et al. v. Garden River Band of Ojibways (1997), 100 O.A.C. 201; 33 O.R.(3d) 782 (C.A.), refd to. [para. 176].

Olson v. Gullo Estate (1994), 71 O.A.C. 327; 17 O.R.(3d) 790 (C.A.), refd to. [para. 176].

Gerula v. Flores (1995), 83 O.A.C. 128 (C.A.), refd to. [para. 176].

Hunt v. TD Securities Inc. et al. (2003), 175 O.A.C. 19; 66 O.R.(3d) 481 (C.A.), refd to. [para. 176].

Dockside Brewing Co. et al. v. Strata Plan LMS 3837, Owners et al. (2007), 239 B.C.A.C. 33; 396 W.A.C. 33; 2007 BCCA 183, leave to appeal denied (2007), 379 N.R. 392; 262 B.C.A.C. 319; 441 W.A.C. 319 (S.C.C.), refd to. [para. 176].

Evergreen Building Ltd. v. IBI Leaseholds Ltd. et al. (2009), 271 B.C.A.C. 298; 458 W.A.C. 298; 93 B.C.L.R.(4th) 77; 2009 BCCA 275, refd to. [para. 176].

Siemens et al. v. Bawolin et al. (2002), 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 178].

Sun Life Assurance Co. of Canada v. Ritchie (2000), 136 B.C.A.C. 215; 222 W.A.C. 215; 76 B.C.L.R.(3d) 93; 2000 BCCA 231, refd to. [para. 179].

Hashemian v. Wilde et al. (2006), 289 Sask.R. 105; 382 W.A.C. 105; 2006 SKCA 126, refd to. [para. 179].

Newfoundland Association of Provincial Court Judges et al. v. Newfoundland (2000), 192 Nfld. & P.E.I.R. 183; 580 A.P.R. 183; 2000 NFCA 46, refd to. [para. 179].

Garcia v. Crestbrook Forest Industries Ltd. (1994), 45 B.C.A.C. 222; 72 W.A.C. 222 (C.A.), refd to. [para. 181].

Leung v. Leung (1993), 77 B.C.L.R.(2d) 314 (S.C.), refd to. [para. 181].

Cabaniss v. Cabaniss (2010), 290 B.C.A.C. 135; 491 W.A.C. 135; 2010 BCCA 348, refd to. [para. 181].

Lienaux et al. v. Toronto-Dominion Bank (1997), 159 N.S.R.(2d) 305; 468 A.P.R. 305 (C.A.), refd to. [para. 181].

Statutes Noticed:

Provincial Court Act, R.S.M. 1987, c. C-275; C.C.S.M., c. C-275, sect. 11.1 [para. 34].

Authors and Works Noticed:

Baragar, Fletcher, Update on the Manitoba Economy and the Province's Fiscal Capacity (2008), generally [para. 104].

Manitoba Legislative Assembly, Report and Recommendations of the Judicial Compensation Committee (2008 JCC Report) (2009), generally [para. 16]; p. 70 [para. 17].

Manitoba Legislative Assembly, Report and Recommendations of the Judicial Compensation Committee (2011 JCC Report) (2012), Sessional Papers, No. 16, generally [para. 160].

Waldron, Mary Anne, The Law of Interest in Canada (1992), p. 142 [para. 125].

Counsel:

K.D. Labossiere and L.K. Troup, for the appellants;

S. Dawes and D.G. Bartel, for the respondents.

This appeal was heard on December 13, 2012, by Monnin, Steel and Beard, JJ.A., of the Manitoba Court of Appeal. On August 21, 2013, Steel, J.A., delivered the following judgment for the court.

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31 practice notes
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    ...81; 2014 MBCA 5, refd to. [para. 45]. Judges of the Provincial Court (Man.) v. Manitoba et al. (2013), 294 Man.R.(2d) 273; 581 W.A.C. 273; 2013 MBCA 74, refd to. [para. Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83 (C.A.), refd to. [para. 48]. Williams v. Downey-Waterbury (1995), 10......
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