Former N.S. Liberal government accused of politicizing judges' salaries

The Nova Scotia government has been ordered to take another look at the salaries it pays provincial and family court judges.

The order comes from a justice of the Nova Scotia Supreme Court who quashed a salary contract imposed by the former Liberal government of Stephen McNeil. In a strongly worded decision released Wednesday, Justice Ann Smith criticized the process the McNeil government used.

"The question before the court is whether the government politicized the process of setting the judges' remuneration," Smith wrote. "There is plenty of evidence before the court that it did."

The dispute dates back to February 2017, when the McNeil government issued an order-in-council imposing a three-year wage settlement that included a one per cent wage increase coupled with a two-year wage freeze.

The order-in-council overruled a recommendation from an arms-length salaries and benefits tribunal that had been set up expressly to make recommendations on judges' remuneration free from political interference. Until the McNeil government amended the legislation governing the tribunal, its recommendations had been binding.

The McNeil government argued the provincial treasury couldn't afford the sort of salary recommendations the tribunal had been making. The wage settlement the government imposed on the judges was in line with contracts for other public servants. The tribunal had recommended a salary increase of 9.5 per cent for judges spread over three years.

Smith found the government order failed to properly consider the nature of judges' work.

"This court finds that the [order-in-council] did not engage in any meaningful way with the unique nature of judicial office. Its focus on its fiscal plan and its public sector wage mandate seems to have blinded it to its constitutional responsibility to do so."

The judge said the government's determination to stick to its fiscal plan made the whole tribunal process meaningless because submissions made on behalf of the judges were not properly considered.

This battle went all the way to the Supreme Court of Canada as the government tried to prevent the release of its report and recommendations that led to the order-in-council.

Canada's top court ruled the government had to release portions of the report and recommendations to lawyers representing the judges. It included details of the communications strategy the government was to use to defend its actions.

That strategy included the argument that the tribunal's recommendations are "simply unaffordable," and that when it comes to fiscal restraint, "we all have a part to play."

Average salary $238,513 in 2019

Current Nova Scotia Premier Tim Houston said his government will need time to study the court decision before deciding whether to appeal it. But he was highly critical of the McNeil government's actions in this case.

"The separation and the respect for the justice system is critical," Houston told reporters Wednesday at Province House.

"I think the former government at a few times showed ... that they didn't really respect the justice system. I think this would probably fall into that category as well."

Nova Scotia has 24 provincial and family court judges and there are four vacancies. Their average salary, as of 2019, was $238,513.