N.S. did nothing 'untoward' in imposing salary on judges, lawyer argues

A lawyer for the Nova Scotia government says the province did nothing wrong when it imposed a wage settlement on provincial and family court judges that matched the small percentage increase it was giving to public sector employees.

The association representing the 40 judges has asked a Nova Scotia Supreme Court justice to review the government decision, and argues the government violated the constitution and the Provincial Court Act with the imposed settlement.

On Wednesday, a lawyer for the association made its case to Justice Ann Smith. On Thursday, it was the government's turn.

Lawyer Jeffrey Waugh said the government recognizes the special status of judges under the constitution. He said the compensation package did not compromise judicial independence, as the association has claimed.

But Waugh said judges should not be shielded from the fiscal and economic realities of the province. 

Tribunal recommendation

The issue has been brewing for five years, ever since the province stripped power from an arms-length tribunal to make binding recommendations on judges' salaries. The tribunal recommended in 2017 a 9.5 per cent salary increase. Judges made $236,376 a year plus benefits at the time, although they are among the lowest paid in the country. 

Instead, the province imposed a salary package with no increases in the first two years and an increase of only one per cent in the third year.

Waugh said judges were not singled out, because similar settlements were imposed on 75,000 public sector employees around the same time. He said the tough fiscal measures were necessary to try to rein in the province's debt and deficit. He also pointed out that even with the modest increase granted by the government, judges remained in the top one per cent of wage earners in Nova Scotia.

Smith questioned what purpose the tribunal served if the government didn't follow its recommendations. Waugh countered that the tribunal was not simply a "rubber stamp," because if it was the process "would not pass constitutional muster."

Battle over records

The association had asked the government to supply the reasons behind its decision in preparation for the court challenge. What the association received was heavily redacted because it included protected advice to government.

The province refused to provide the material and the battle went all the way to the Supreme Court of Canada before the government complied with an order to release at least some of the information.

The unredacted material included a detailed communications plan for handling public questions about the salary dispute.

At one point, Smith quoted from the strategy, which warned of the challenges the government would face in getting its side of the story out.

"What is this court supposed to do with that?" she asked.

Waugh said the communications strategy was not advice to government about the salary dispute, and he said "it doesn't show any disrespect for the process or anything untoward."

If the association wins its case, it's asked Smith to impose the original salary settlement from the tribunal back in 2017.

Waugh described that proposal as "unusual" and instead suggested that should the government lose this case, the salary issue should be referred back to cabinet for reconsideration. He said there is no evidence of animus or bad faith in the way the government has handled this issue.

Smith has reserved her decision.

This Nova Scotia case comes as Newfoundland and Labrador considers a 7.6 per cent salary increase for its judges.