Judges sue federal government over decision to refuse $28,000 raise

OTTAWA — The thorny question of whether federally-appointed judges should get a $28,000 to $38,000 raise from Ottawa will now be decided by the Federal Court.

Wednesday, the Canadian Superior Courts Judges Association (CSCJA) filed the first-ever lawsuit asking the Federal Court to order Minister of Justice Sean Fraser to reconsider his decision to deny the judiciary the raise to their $414,900 annual salary.

In the lawsuit, the association representing 1,400 sitting and retired judges said Fraser did not properly explain why he disregarded a recommendation by the Judicial Compensation and Benefits Commission for the raise.

“None of the three reasons given by the Government are legitimate reasons based on a reasonable factual foundation,” reads the CSCJA’s lawsuit.

This is the first time an association representing the judiciary takes the government to court over judges’ pay since the first quadrennial commission was established in 1999.

The commission was established following a 1997 Supreme Court decision that required a review of judicial compensation by an independent commission. The panel would hear arguments from government and judges and then issue non-binding recommendations that the government must respond to.

In July, the commission recommended the government increase the “inadequate” salaries by $28,000 for most federally-appointed judges to $36,000 for the chief justice of the Supreme Court. It argued the raise was necessary to keep the bench attractive to “outstanding candidates.”

But in his response to the commission on the eve of budget 2025, Fraser said the government disagreed with the finding.

“Current compensation for judges already includes annual indexation and strong pensions,” said his spokesperson Jeremy Bellefeuille, pooh-poohing the conclusion that there was a lack of top candidates to fill judicial vacancies.

The federal government also argued that it would be uncouth to offer judges a raise as Canadians face increasing economic uncertainty and the government is preparing to cut public sector spending and the size of the bureaucracy.

In its lawsuit, the CSCJA said that the response missed the point when responding to the commission’s reasoning leading to the recommended raise.

The association said that instead of arguing with the substance of the commission’s report as well as new data illustrating the gap between judges’ and lawyers’ salary, Fraser simply reiterated the government’s arguments that failed to convince the independent panel in the first place.

“Allowing such a response to stand would render the Commission process meaningless and erode public confidence in the independence of Canada’s courts. A strong, expert, and independent judiciary is essential to the fair and timely delivery of justice,” CSCJA lawyer Jean-Michel Boudreau of IMK LLP said in a statement.

Fraser’s spokesperson Lola Dandybaeva said that the minister was reviewing the lawsuit.

“Current compensation for judges’ salary and benefits already includes annual indexation and pensions,” she said.

The quadrennial commissions’ recommendations this summer fell squarely in the middle of the judiciary and the federal government’s positions.

Judges’ associations argued magistrates needed a $60,000 raise retroactive to April 2024 to maintain the appeal of a job that is increasingly struggling to attract “outstanding candidates.” Otherwise, the bench risked another vacancy crisis because the position was unappealing to private sector lawyers, they added.

The federal government countered that judges’ salary and benefits — including “one of the best retirement plans in Canada” — as well as generous indexing did not require a $60,000 “bonus” to keep the job attractive.

The government also said in its arguments to the commission and in its reasons for denying the raise that it couldn’t justify paying judges more as it prepared to cut the public service by 40,000 heads.

But, the CSCJA argues, the government did not impose salary freezes on public servants.

“It was at the very least incumbent on the Government to explain its differential treatment of the judiciary, who are not a class of civil servant,” reads the lawsuit.

“No explanation is provided beyond the Government’s bald statement that judicial salaries are ‘adequate’, reflecting the Government’s unabashed and improper substitution of its own view for that of the independent Commission.”

Ultimately, the CSCJA says that allowing Fraser’s “inadequate” response undermines the quadrennial commission’s work and treats it like a mere formality before the government renders whatever decision it wants to make on judicial compensation.

“The Supreme Court of Canada made clear that while the Government is not required to accept Commission recommendations, if it chooses to depart from them, it has a duty to provide legitimate reasons,” Boudreau said in the CSCJA statement.

“Meaningful engagement with the Commission’s work is not optional, it is a constitutional obligation.”

National Post

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