John Ivison: Judges suing Ottawa for fatter salaries are shameless

Canada’s Superior Court judges are taking the federal government to the Federal Court, where one of the esteemed justices will rule on whether Ottawa owes all senior judges a $28,000 pay rise.

So, no conflict of interest there then.

More accurately, he or she will adjudicate on whether Ottawa behaved in a “constitutionally defective” manner when it ignored the recommendation of an independent commission to award a pay increase, on top of index-linked raises.

The judges’ association claims the case is not about the money — a clear indicator that it is absolutely about the money — but, rather, it is about protecting Canadian democracy.

Judges, so the claim goes, are the foot soldiers of the Constitution and they really, really need to add another $28,000 to their $396,700 salaries to ensure judicial independence.

The application for judicial review lodged with the Federal Court last week by the Canadian Superior Court Judges’ Association (CSCJA) is about as bare-faced as President Donald Trump’s self-serving argument on why he accepted a US$400 million jet from Qatar (“They’re giving us a gift and only a stupid person wouldn’t accept it”) if only a little more nuanced.

The background is that last summer an independent body called the Judicial Compensation and Benefits Commission recommended salaries be increased by $28,000, excluding the statutory indexing that keeps them ahead of the cost of living.

The three-person commission convenes every four years to appraise judicial remuneration, in response to a 1997 Supreme Court judgment that held that judicial independence should prohibit negotiations over pay between the judiciary and government. The commission makes recommendations that take into account the prevailing economic conditions, the financial security of the judiciary and the need to attract outstanding candidates.

The government can reject the commission’s recommendations but must articulate legitimate reasons, based on a factual foundation.

The federal government rejected the recommended pay hike on the basis that there has been “a significant deterioration in Canada’s financial outlook”; that current judicial salaries are “adequate”; and, that the government can’t add new spending during an expenditure review that could include public sector job losses.

That argument would seem to provide a pretty firm factual foundation, but the judges appear to be completely disconnected from the anxieties and concerns affecting everyday Canadians.

The CSCJA filing argues Ottawa failed to “meaningfully engage” with the commission’s recommendations, particularly over “comprehensive new evidence” that suggests a widening gap between judicial salaries and private sector earnings.

But the claim of a judicial “vacancy crisis” is not borne out by the facts. The commission’s analysis revealed that there were only 269 applications for federal branch vacancies in 2024/25, down from 379 in 2023/24 and 410 the year before that. Yet there are currently only 39 vacancies out of a total of 1,195 Superior Court positions. Ottawa’s response to the commission’s findings was that it “fundamentally disagrees” with the idea that there are serious challenges attracting private sector lawyers. It said that there was no shortage of applicants rated as “recommended” or “highly recommended” in recent hiring rounds.

Colin McKinnon, a retired Ontario Superior Court judge, said that judges used to compare their pay to federal deputy ministers, who were always better remunerated. But he said judges now earn 2.3 per cent more than senior public servants.

“Judges are in a very privileged position serving the public and that can’t be underestimated. It is hard work, often lonely work. But judges in Ontario get eight weeks of holiday, get a very generous travel allowance when they are out of town and have security of employment until they are 75,” he said. On retirement, they qualify for two-thirds of their salary, and on their death their surviving spouse receives 50 per cent, he pointed out.

“One of the things that concerns me is the tone-deafness of bringing an action such as this at this time in our nation’s history,” McKinnon said.

Whether the government’s argument will hold water, only a Federal Court judge, who stands to gain $28,000 a year by saying it doesn’t, can know.

The judges’ association case is that letting it stand renders the commission process meaningless and will erode public confidence in the independence of Canada’s courts.

Ironically, the opposite holds true. A bonanza payment at a time of restraint will undermine confidence in the Canadian court system that is already faltering.

The idea that this windfall is being sought to protect the financial security of the judiciary, as “a cornerstone of Canadian democracy” is as preposterous as it is mendacious.

The judges should read the room and drop this application.

National Post

jivison@criffel.ca