A Divisional Court panel has ruled the province was free to reject a pay raise for Ontario’s Small Claims Court judges as recommended by a commission and introduce a more modest boost.
Don Kidd, a lawyer with SmithValeriote LLP and head of the Ontario Deputy Judges’ Association, says the organization is “disappointed” by the Divisional Court’s ruling.
“We understand the decision; we don’t agree with it,” he says. “We think there is a higher obligation and duty on the government.”
The ODJA hoped the court would agree with its view that the government should have imposed pay raises to $750 per day by 2009, from $232 before the review.
Instead, justices Katherine Swinton, Wailan Low, and Katherine van Rensburg ruled the government met the “constitutional standard of rationality” in its decision to raise the rate to $528 by this year.
“Overall, the government’s response does address the commission’s recommendations and does explain what it accepted and why it departed from some recommendations,” wrote Swinton, on behalf of the court.
“This is not a case where the government has simply ignored the commission’s recommendations and reiterated its original submissions,” she added, noting the government had originally pressed for an increase to about $300 per day by 2009.
The case stems from the government’s May 2008 response to the findings of the First Deputy Judges Remuneration Commission.
The commission was set up after the Superior Court in 2005 ruled the $232 the deputy judges had been receiving since 1982 was not enough to ensure judicial independence. In 2006, the Court of Appeal upheld that decision, with small variations.
Lawyer Louisa Davie led the review as commissioner. Her report, submitted in October 2007, recommended an initial per diem increase to $475 as of Jan. 1, 2005. She proposed that number increase to $525 in 2006, $600 in 2007, $675 in 2008, and $750 in 2009.
The deputy judges - currently about 400 lawyers who work part time as judges appointed to three-year terms - asked that the rate be equated to the salaries of full-time, provincially appointed Small Claims Court judges. At the time of the commission, those full-time judges received nearly $219,000 per year, plus benefits including a pension.
In a May 2008 response, then minister of Government Services Ted McMeekin accepted the initial raise to $475 as of Jan. 1, 2005. He rejected the need for the successive yearly increases of over 10 per cent to 15 per cent, as suggested by Davie.
He wrote to Davie, saying the “year-over-year increases from 2006 to 2009 are not warranted to provide deputy judges with a fair and reasonable level of compensation, and do not sufficiently take into account the other criteria that the commission is required to consider in developing its recommendations,” according to Swinton’s decision.
Instead, the government adopted increases to $486 in 2006, $498 in 2007, $513 in 2008, and $528 in 2009.
The ODJA took its opposition to the government’s rate to the Divisional Court.
It argued the government “misinterpreted and failed to address the key findings of the commission that the ultimate per diem of $750 effective Jan. 1, 2009 was constitutionally appropriate and instead imposed a rate structure . . . based on non-judicial comparators that had been rejected by the commission.”
The judges also argued the government “failed to address the key judicial comparators which were accepted by the commission . . . and instead substituted a heavy reliance on non-judicial and public service comparators without adequate justification and contrary to the relevant case law,” according to the ruling.
They also said the government did not address the “constitutional requirements of judicial compensation as found by the commission.”
But the court disagreed. It said the government gave “legitimate reasons” for taking a different stance than the commission recommended.
“Having accepted that $475 was a fair and reasonable per diem in 2005, the government gave detailed reasons explaining why it rejected the proposed increases for 2006 through 2009 as excessive,” wrote Swinton.
“In determining the appropriate increases for the following years, the government explained that it gave weight to factors which the commission chose not to consider.”
The panel also noted that recruitment of Small Claims Court judges was not an issue, and the “per diem is not intended to be a salary or to be a significant source of income for the lawyers who act as deputy judges,” most of whom sit about one and a half days per month.
The court also ruled the government’s reasons had a sufficient “factual foundation.”
“The government provided a detailed response to the commission’s report and gave legitimate reasons when it departed from the recommendations,” wrote Swinton.
“In my view, the government’s response, viewed globally, respected the commission process and depoliticized the relationship of the executive/legislative branches and the judicial branch.”
Fraser Milner Casgrain LLP partner David McCutcheon, who represented the ODJA, says it’s unlikely the deputy judges will appeal the Divisional Court’s ruling. He notes that the order-in-council that created the first commission to determine the deputy judge’s remuneration calls for the creation of a second commission this year.
McCutcheon says the deputy judges were not convinced, however, by the court’s reasoning in rejecting their argument on receiving the same pay as full-time judges.
“The constitutional aspects of the case, that is to say the parity between the deputy judges and the full-time judges in the same court gives rise to a constitutional issue as to how that difference arises,” he says.
“I don’t think that my clients found the explanation for that to be particularly satisfying, when they’re doing the same job in the same court as these other judges who are being paid considerably more.”
McCutcheon says the ODJA is currently helping choose the next commissioner and set up a “procedure” to set the deputy judges’ pay scale from 2010 to 2013. He expects that process to wrap up this fall.
Asked what the deputy judges will be looking for in this round, McCutcheon simply replies, “more.”
He says the Small Claims Court jurisdiction will rise to $25,000 next year from the current $10,000 ceiling.
“It’s not just a matter of an inflationary adjustment - there’s actually an adjustment to what they make to take into account the increasing complexity and size of what they’re being asked to do,” he says.
