NS did nothing “untoward” by imposing salaries on judges, lawyer says

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

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

Wednesday, a lawyer from the association does his business to Justice Ann Smith. Thursday was the government’s turn.

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

But Waugh said judges should not be immune to the province’s fiscal and economic realities.

Tribunal recommendation

The issue has been brewing for five years, since the province removed the power to make binding recommendations on judges’ salaries from an independent tribunal. The tribunal recommended in 2017 a salary increase of 9.5 percent. Judges were making $ 236,376 per year plus fringe benefits at the time, despite being among the lowest paid in the country.

Instead, the province imposed a salary program with no increases in the first two years and an increase of just one percent in the third year.

Waugh said the judges were not distinguished because similar regulations were imposed on 75,000 public sector employees around the same time. He said tough fiscal measures were needed to try to bring the province’s debt and deficit under control. He also pointed out that even with the modest increase granted by the government, judges remained in the top percent of salaried workers in Nova Scotia.

Smith asked what the tribunal is for if the government doesn’t follow through on its recommendations. Waugh countered that the court was not just a “rubber stamp” because if it were, the process “would not pass the constitutional test.”

Battle of records

The association had asked the government to provide the reasons for its decision with a view to the legal challenge. What the association received was heavily redacted as it included protected advice to government.

The province refused to provide the documents and the battle continued 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 to address questions from the public about the wage dispute.

At one point, Smith cited the strategy, which warned of challenges the government would face in making its side of the story known.

“What is this tribunal supposed to do with this?” she asked.

Waugh said the communications strategy was not advice to government on the wage dispute, and he said “it shows no disrespect for the process or anything untoward.”

If the association wins its case, Smith is asked to impose the court’s initial salary settlement in 2017.

Waugh called the proposal “unusual” and suggested instead that if the government loses the case, the salary issue should be referred back to cabinet for reconsideration. He said there was no evidence of animosity or bad faith in the way the government handled this issue.

Smith reserved his decision.

The Nova Scotia case comes as Newfoundland and Labrador is considering a 7.6 percent pay hike for its judges.

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