A Newfoundland and Labrador Supreme Court judge minced no words in a ruling involving the province and provincial court judges this week, saying it is government officials — not legislation — that have failed the judges when it comes to determining their salaries and benefits.
Justice Alphonsus Faour noted a number of faults with the handling of the process by governments past and present, and ordered the province and the association representing the judges to get together for face-to-face discussions with a view of making changes.
The Association of Provincial Court Judges won an application earlier this year that forced the provincial government to give each of the judges a pay increase of about $32,000 a year, with parts of it retroactive to 2013, as originally recommended by an independent tribunal two years ago. The government had rejected the recommendation at the time it was presented by the tribunal, saying it couldn't afford it.
The association also appealed to the Newfoundland and Labrador Supreme Court for an order forcing the province to launch the next tribunal process to set their salaries and benefits, and asked for a declaration that certain aspects of current legislation are invalid, in an effort to avoid future delays.
Faour, who granted the pay raise application last June, dismissed the latest one from the judges' association, saying it was inappropriate. That's not to say there aren't any problems — they just require a different remedy, he ruled.
Among the most serious issues, Faour said, is the fact that government officials "utterly failed" in depoliticizing the tribunal process.
"On the contrary, the debate over judicial remuneration was played out in a partisan political manner in the legislature," Faour said. "Both the government and the opposition were complicit in this exercise, and it served to ensure that the tribunal's recommendations were debated in a manner which the tribunal process was designed to avoid."
Faour noted the province had attempted to make a connection between the judges' pension policy and that of others in the public service, saying it's long been clear that they must not be linked. The government's attempt to make that connection was "inappropriate at best and disingenuous at worst," Faour said.
He said the province also failed to participate in the tribunal process in any meaningful matter, in particular when it comes to the issue of judicial pensions.
Faour said governments past and present failed to address delays in all aspects of the tribunal process, indicating a "lack of respect for the importance of the process."
The current government's argument that the province couldn't afford the recent pay raise also didn't sit well with Faour, who said the economic data and forecasts the province used did not address the period covered by the tribunal's mandate.
"There were no system-wide measures undertaken, and it appeared that the judges were singled out as the only group in the public sector to have their salaries frozen during the four-year mandate of the tribunal," he said.
Faour agreed with the judges that the repeated actions of the province over the past two decades have breached legislation, but opted not to grant their application as it was presented.
"In light of the fact that there have never been face-to-face consultations between the two sides, I believe it is appropriate to order that the association and the government, through its attorney general, engage in discussions about improvements to the tribunal process so that the difficulties which have been identified can be minimized in the future," he said.
Twitter: @tara_bradbury
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