Gonthier J.
I. Introduction
Gonthier J. —
This appeal primarily raises the issue of whether the abolition by the legislature of the position of supernumerary judge of the Provincial Court of New Brunswick contravenes the constitutional guarantees of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms and in the Preamble to the Constitution Act, 1867 . The incidental issues that arise are whether the respondent judges should be awarded damages and whether costs should be ordered on a solicitor- client basis.
II. Facts
The Provincial Court of New Brunswick was established in 1973 by the Provincial Court Act, R.S.N.B. 1973, c. P-21. Section 8(1) of the Act provides that “[e]ach judge is hereby constituted a court of record and, throughout the Province, has all the powers, authority, criminal jurisdiction and quasi‑criminal jurisdiction vested in a police magistrate or in two or more justices of the peace sitting and acting together, under any law or statute in force in the Province”. It accordingly has substantial criminal jurisdiction. The court is also the youth court designated by the province for the purposes of the Young Offenders Act , R.S.C. 1985, c. Y‑1 . Section 6 of the Provincial Court Act provides that a “judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his duties”. Section 4.2 provides that a “judge shall retire at the age of 75 years”. Finally, s. 3.1 states that “[a] judge shall have the same protection and privileges as are conferred upon judges of The Court of Queen’s Bench of New Brunswick, for any act done or omitted in the execution of his or her duty”.
On January 1, 1988, the Act to Amend the Provincial Court Act, S.N.B. 1987, c. 45, the purpose of which was to create the office of supernumerary judge and to eliminate that of deputy judge, came into force. A judge of the Provincial Court could thereby elect to sit as a supernumerary judge if he or she met the following conditions: (i) he or she had reached the age of 65 years and had accumulated 15 years of service; or (ii) he or she had reached the age of 60 years and had accumulated 25 years of service; or, finally, (iii) he or she had reached the age of 70 years and had accumulated 10 years of service. Thus, as the conditions of eligibility for the office of supernumerary judge fully reflected the conditions of eligibility for payment of a retirement pension equivalent to 60 percent of the full salary, an additional choice was given to the judges of the Provincial Court who satisfied these conditions. They could then: retire and receive their pension; continue to sit as a full-time judge; or sit as a supernumerary judge. Section 4.1(5) of the Provincial Court Act provided that a supernumerary judge was to remain available in order to perform the duties assigned to him or her “from time to time” by the Chief Judge. It was understood by everyone, however, that while a supernumerary judge of the Provincial Court received a salary and fringe benefits equivalent to those given to judges sitting full time, he or she was in practice asked to take on only about 40 percent of the usual workload of a full-time judge.
On April 1, 1995, ss. 1 through 8 of the Act to Amend the Provincial Court Act, S.N.B. 1995, c. 6 (also called “Bill 7”), came into force. Section 2 provided for the straight abolition of the system of supernumerary judges and s. 3 provided for its replacement by a panel of retired judges sitting at the request of the Chief Judge or the Associate Chief Judge and paid on a per diem basis. Also, the supernumerary judges then in office were faced with a choice of retiring or beginning to sit full time again (s. 9(1)). They were required to give notice to the government of their decision before April 1, 1995. The legislation did not contain a so-called “grandfather” clause that would have allowed the supernumerary judges in office at that time as well as the other judges of the Provincial Court appointed before Bill 7 came into force to retain the privileges conferred upon them by law. According to the appellant, the government’s decision to abolish the position of supernumerary judge was made for reasons of efficiency and flexibility as well as for economic and financial reasons. Thus, in its plea, it stated that “[t]he repeal of the supernumerary provisions by Bill 7 was a legislative initiative undertaken in the context of overall public fiscal restraint and a reasonable attempt to improve the utilization of resources and cost effectiveness in the administration of the Provincial Court”.
The respondent Judge Douglas E. Rice joined the provincial judiciary on August 16, 1971. On July 2, 1992, upon reaching the age of 65 years and after sitting for more than 15 years, he was entitled to retire and to receive his pension. Rather than doing so, he decided to exercise his right to sit as a supernumerary judge, which he did starting on April 30, 1993. On April 2, 1995, after Bill 7 became law, he was forced, against his will, to return to a full-time judicial office. He finally retired on October 15, 1997 and asked to be placed on the new panel of judges paid on a per diem basis starting on December 4 of that year. In his written submissions, Judge Rice mentioned that he had organized his financial and personal affairs in light of the conditions applying to his duties as a supernumerary judge.
The respondent Judge Ian P. Mackin joined the provincial judiciary on October 17, 1962. On October 17, 1987, upon reaching the age of 60 years and after accumulating more than 25 years of service, he acquired the right to receive his pension. Nevertheless, on August 15, 1988, he decided, like Judge Rice, to sit as a supernumerary judge. It appears that this reorganization of his judicial duties enabled him to plan the use of his time in such a way that he was able to spend several winters in Australia. Since he did not express his intentions following the enactment of Bill 7, Judge Mackin was deemed, in accordance with s. 9(1) of the Act, to have resumed his duties as a full-time judge. He still held this office as at the date of the hearing before this Court.
Following the coming into force of Bill 7, the two respondents instituted separate proceedings in the New Brunswick courts. Judge Mackin officially informed the government of his intention to bring legal proceedings on April 25, 1995, while Judge Rice submitted his written pleadings on June 24, 1997. The respondents challenged the constitutionality of the legislation abolishing the position of supernumerary judge, arguing that it affected the components of tenure and financial security that form part of judicial independence. Damages and payment of solicitor-client costs were also claimed. In this Court, both cases were joined and argued at the same time.
III. Judgments Under Appeal
A. New Brunswick Court of Queen’s Bench
(1) Mackin v. New Brunswick (Minister of Finance) (1998), 202 N.B.R. (2d) 324
Deschênes J. began by noting the three essential conditions (financial security, security of tenure and administrative independence) and the two dimensions (individual and institutional) of judicial independence as set out by this Court in Valente v. The Queen, [1985] 2 S.C.R. 673, and in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”), in particular. He also mentioned that the judges, whether appointed before or after the creation of the position of supernumerary judge, had definitely developed certain expectations because of the existence of the position. Thus, they were able to plan their professional and financial future accordingly and the facts show that some of them acted in this way. He therefore concluded that, like their pension plan, the existence of the position of supernumerary judge constituted a genuine financial benefit for the judges of the Provincial Court.
On the other hand, he was of the opinion that the office of supernumerary judge also had elements that related to the condition of security of tenure, especially in the sense that a supernumerary judge continued to enjoy the same financial benefits as a full-time judge and was forced to take mandatory retirement at the age of 75. On the basis of the test developed in Valente, supra, at p. 698 — namely, that security of tenure requires “tenure . . . that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner” —, Deschênes J. considered, however, that the legislative abolition of the position of supernumerary judge was not equivalent, strictly speaking, to a dismissal of the supernumerary judges then in office. Consequently, the individual dimension of the condition of security of tenure had not been infringed. However, he added that in terms of both security of tenure and financial security, the issue was institutional in nature rather than individual. Thus, it is not so much the content of the impugned legislation as the process surrounding its enactment that was constitutionally dubious.
Starting with the finding that the office of supernumerary judge constituted a financial benefit for the judges of the Provincial Court, Deschênes J. was of the view that the Legislative Assembly of New Brunswick should have submitted its decision to abolish this position to an independent, effective and objective commission in accordance with what was prescribed in the Provincial Court Judges Reference. In fact, the decision was political in nature in two respects. First, it was informed by classic objectives of general public policy: spending cuts and a more efficient administration of justice. It also raised the spectre of interference by the legislative branch in the independence of the judiciary by means of financial manipulation. As a result, approval by a commission became necessary in order to ensure that the judiciary would not let itself — or appear to let itself — be dragged onto the political stage and at the same time jeopardize its independence. In fact, if the situation were otherwise, a reasonable person informed of all the circumstances would conclude that there was an insufficient degree of independence.
Moreover, Deschênes J. was of the opinion that this violation of the constitutional guarantees of independence could not be justified under s. 1 of the Charter . Because the violation consisted of a failure to refer the matter to an independent, effective and objective commission, this failure itself must be demonstrably justified. The government merely raised a defence of the reasonably justified nature of the legislation. Whether the legislation was justified or not, Deschênes J. felt that the amendment had been made arbitrarily without any real consultation with the judges affected. Finally, he mentioned that the lack of a grandfather clause was unfair to the judges of the Provincial Court generally, on the one hand, and even more unfair to those judges who sat as supernumeraries, on the other.
Consequently, Deschênes J. declared that s. 2 of the Act to Amend the Provincial Court Act was unconstitutional, ordered that the question of the abolition of the office of supernumerary judge be referred immediately to the existing salary commission and suspended the declaration of unconstitutionality until the commission had issued a report on the question.
On the other hand, Deschênes J. refused to award damages to Judge Mackin for the violation of judicial independence by the provincial legislature. First, he noted that s. 24(1) of the Charter did not apply because Judge Mackin had not been the victim of a violation or infringement of his rights or freedoms protected by the Charter . Second, the general rule of public law, as set out in Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, states that damages will not be awarded for the enactment of legislation that is subsequently declared to be unconstitutional, except in the event of bad faith or other wrongful conduct on the part of government institutions.
Finally, on the question of costs, Deschênes J. stated that notwithstanding the use of disputed means, Judge Mackin was advancing the legitimate cause of protecting the independence of the judiciary and that he had been partially vindicated in this regard. He accordingly ordered that he be reimbursed for his costs on a party-and-party basis.
(2) Rice v. New Brunswick, [1998] N.B.J. No. 226 (QL)
Deschênes J. applied the same reasoning to the situation of Judge Rice. He also rejected Judge Rice’s argument to the effect that the legislation abolishing the office of supernumerary had been enacted for ulterior or wrongful reasons.
B. New Brunswick Court of Appeal
(1) Rice v. New Brunswick (1999), 235 N.B.R. (2d) 1
(a) Ryan J.A.
Ryan J.A. viewed the actions of the provincial government as a violation of the concept of judicial independence. He began by finding that the office of supernumerary judge was a genuinely separate judicial office as opposed to a mere status or position. He then expressed the view that the elimination of the position of supernumerary judge had violated both the condition of financial security and that of security of tenure.
According to Ryan J.A., financial security was violated in both its individual and institutional dimensions. With respect to judges who were performing supernumerary duties at the time, their financial security was affected in its individual dimension whereas in respect of the other judges of the Provincial Court, it was affected in its institutional dimension. He also concluded that there was in fact political interference as a result of financial manipulation. By contrast, he asserted that the guarantee of security of tenure was affected only in its individual dimension because, for the supernumerary judges in office at that time, the abolition of their positions was equivalent to an arbitrary and premature removal.
Since there was a violation of financial security, Ryan J.A. agreed with the trial judge in stating that the case should at the very least have been submitted to an independent, effective and objective commission. However, given his further findings concerning the violation of the condition of security of tenure, he felt that a referral to the existing commission would not be sufficient and that the Act quite simply had to be declared invalid. In any event, he added that the jurisdiction of this commission — which was limited to examining salaries, pension, vacation and sick leave benefits (s. 22.03(1) of the Provincial Court Act) — did not extend to the question of the abolition of the position of supernumerary judge.
Moreover, Ryan J.A. felt that the legislation could not be justified under s. 1. First, he maintained that judicial independence went beyond the provisions of the Charter and that an attack on an institution that was so fundamental to the Canadian constitutional system was well and truly unjustifiable. He then referred to the arbitrary and unfair nature of the government’s actions. Finally, he noted that the lack of a grandfather clause for the benefit of the supernumerary judges and the other judges of the Provincial Court precluded any claim that the violation of judicial independence was minimal.
Concerning the awarding of damages, Ryan J.A. noted that the case related to an exceptional situation involving a veritable attack by the legislative and executive branches against the judiciary. The government of the time could not have been oblivious to what it was doing and must have been aware of the effects its decision would have on the independence of the judiciary. He concluded accordingly that it was necessary to set aside the principle of qualified government immunity referred to in Guimond, supra. Consequently, neither negligence nor bad faith necessarily had to be established. Furthermore, there was a direct causal link between the violation of the rights of judges and the harm sustained. Thus, damages could be awarded under s. 24(1) of the Charter , or because of the duty of mutual respect owed by the different branches of government to one another. In the alternative, Ryan J.A. considered that the failure of the then-Minister of Justice to keep the promise made to the provincial judges to refer the legislation eliminating the office of supernumerary judge to the Law Amendments Committee constituted sufficient evidence of bad faith justifying the award of damages. However, he decided to refer the question of determining the appropriate amount back to the trial judge.
Finally, Ryan J.A. ordered that Judge Rice be paid his legal costs on a solicitor-client basis.
(b) Drapeau J.A.
(b) Drapeau J.A.
Drapeau J.A. concurred with Ryan J.A. He nevertheless made a number of comments of his own on the question of damages. He began by expressing his agreement with Ryan J.A. that evidence of bad faith was not required in order for damages to be awarded in this case. The individual dimension of judicial independence was at issue and both the public and the supernumerary judges personally bore the cost of the provincial government’s decision unilaterally to abolish the office of supernumerary judge. He added that the legislation was enacted despite a clear awareness of its effects on the independence of the judiciary and on the supernumerary judges. He accordingly concurred with Ryan J.A. in finding that the traditional rules concerning the award of damages in constitutional proceedings should be set aside. Damages should be awarded not only to compensate the supernumerary judges but also to discourage any other attempt at legislative interference with judicial independence.
(c) Daigle C.J.N.B., dissenting
(c) Daigle C.J.N.B., dissenting
Daigle C.J.N.B. examined each of the first two conditions of judicial independence in order to determine whether they were violated by the enactment of Bill 7. His analysis focused first on the question of financial security. In his opinion, it was compromised in that the abolition of the office of supernumerary judge was likely to affect the judges’ planning of the conditions for their retirement. Thus, although the situation did not involve a reduction as such in their net salary — since they retained the possibility of earning the equivalent of a full-time salary — the fact remained that the judges of the Provincial Court could legitimately rely on the existence of such a position in order to make certain plans of an economic and financial nature.
According to Daigle C.J.N.B., however, the guarantee of financial security was affected only in its institutional dimension. According to the principles set out in Provincial Court Judges Reference, supra, the Legislative Assembly of New Bunswick had a duty to refer the question of the elimination of the office of supernumerary judge to an independent, effective and objective commission. However, he noted that there was no evidence in the case to suggest that there might have been any attempt at economic interference on the part of the legislature at the expense of the judges of the Provincial Court.
Daigle C.J.N.B. was, moreover, of the view that the constitutional guarantees of security of tenure were not infringed since it was possible for the supernumerary judges to resume their duties full time. An analysis of the Provincial Court Act supported him in this conclusion. First, he noted that s. 1 of the Act defined “judge” as including both a judge and a supernumerary judge. He added that s. 6 provided that a judge should hold office during good behaviour and could be removed from office only for misconduct, neglect of duty or inability to perform his duties. He also noted that a judge did not have to retire in order to become supernumerary. Rather, a supernumerary judge continued to exercise his duties as a judge of the Provincial Court until retiring. In short, Daigle C.J.N.B. found that there was no separate judicial office relating to the office of supernumerary judge. Consequently, the abolition of this position was of no consequence in terms of the security of tenure of the judges of the Provincial Court.
He was of the opinion, moreover, that the violation of the institutional guarantees of financial security was not justified under s. 1 of the Charter , since the government did not direct its argument to the legitimacy of its decision to ignore its duty to refer the question to an independent, effective and objective commission.
On the subject of damages, Daigle C.J.N.B. proceeded to apply the general rules governing the liability in tort of government institutions for enacting legislation that is subsequently declared unconstitutional. Thus, he was of the view that in such cases, damages would be awarded only in very rare instances, including where an act was passed in bad faith or for unworthy reasons. A bare allegation of unconstitutionality could not, on the other hand, justify an award of damages. In this case, not only was the refusal of the Minister of Justice to honour his promise to submit the legislative amendments to the Law Amendments Committee not alleged in the pleadings but, moreover, it does not support a finding of bad faith.
Daigle C.J.N.B. added that any relief under s. 24(1) of the Charter constituted a personal right that could be exercised only by a person whose fundamental rights had been violated. In this situation, only the institutional dimension of judicial independence was at issue. Furthermore, judicial independence exists for the benefit of the litigants and not for that of the judges. Finally, and in any event, he was of the opinion that a claim for damages could not succeed because the province enacted the legislation in good faith and in accordance with the constitutional teachings of the time. In fact, when Bill 7 came into force, the decision in Provincial Court Judges Reference, supra, had not yet been rendered.
Because of the infringement of the institutional dimension of financial security, Daigle C.J.N.B. declared Bill 7 to be unconstitutional. However, he ordered a suspension of this declaration for a period of six months to allow the province to correct its approach. He refrained from referring the matter to the existing salary commission since the province could rectify the problem by other means.
Finally, he agreed with the trial judge’s opinion that the award of costs as between solicitor and client was quite simply not appropriate in this case. As far as the appeal proceedings were concerned, since each party should, in his view, be successful in part, he would have ordered that they pay their own costs.
(2) Mackin v. New Brunswick (Minister of Justice) (1999), 40 C.P.C. (4th) 107
All three judges in the Court of Appeal adopted their reasoning in Rice for the decision in Mackin.
IV. Relevant Statutory Provisions
Provincial Court Act, R.S.N.B. 1973, c. P-21 (as of March 30, 1995)
Footnotes
- [1] *On June 17, 2002, the period of suspension was extended to February 14, 2003. On January 24, 2003, the period of suspension was further extended to August 14, 2003.
Cases cited
- III. Judgments Under Appeal A. New Brunswick Court of Queen’s Bench (1) Mackin v. New Brunswick (Minister of Finance) 202 N.B.R. (2d) 324 ¶ 7
- Valente v. The Queen 17583-1985-12-19 p. 698 ¶ 8, ¶ 9
- Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I. 24508, 24778-1997-09-18 ¶ 8, ¶ 10
- Guimond v. Quebec (Attorney General) 24625-1996-10-03 ¶ 13, ¶ 20
- Rice v. New Brunswick 235 N.B.R. (2d) 1 ¶ 15
- Provincial Court Judges Reference Provincial Court Judges Reference, supra ¶ 24, ¶ 28
Statutes and regulations cited
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- Section 8(1) ¶ 2
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Unresolved citations