Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia, et al. v. Judges of the Provincial Court and Family Court of Nova Scotia, as represented by the Nova Scotia Provincial Judges Association

(Nova Scotia) (Civil) (By Leave)

(Publication ban in case) (Sealing order) (Certain information not available to the public)


Constitutional law – Division of powers – Judicial independence – Judicial compensation – Public interest immunity – Cabinet confidentiality – Administrative law – Judicial review – Are confidential Cabinet records relevant in an application for judicial review? – If confidential Cabinet records are relevant to judicial review, how do such requests for disclosure impact public interest immunity and the parliamentary tradition of Cabinet confidentiality?


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.


The Provincial Judges’ Salary and Benefits Tribunal (the Tribunal) reports to the Minister of Justice on the appropriate level of pay for judges of the Provincial and Family Courts of Nova Scotia. The Provincial Court Act, RSNC c. 238 (the Act) requires the Minister of Justice to deliver the Tribunal report to the Governor in Council which occurred in December of 2016. Under the Act, the Governor in Council may confirm, vary or reject the Tribunal’s recommendations along with reasons. Statutory matters delegated to the Governor in Council are submitted to the Executive Council in a Report and Recommendation (R&R). Before the Governor in Council made a decision, Cabinet received a confidential submission set out in the R&R, signed by the Attorney General, concerning the Tribunal’s report. The Governor in Council varied one of the five recommendations of the Tribunal and provided reasons for the variation. In March of 2017, the Nova Scotia Provincial Court Judges’ Association (PCJA) applied for judicial review of the variation. A motion by the PCJA requested the Governor in Council produce the R&R and to include an affidavit by the Honourable James H. Burrill. The Supreme Court of Nova Scotia held that the Governor in Council should produce the R&R except passages covered by solicitor-client privilege. An appeal to the Nova Scotia Court of Appeal was dismissed and cross-appeal was allowed in part on the basis of the Burrill affidavit.

Lower Court Rulings

March 6, 2018
Supreme Court of Nova Scotia, Trial Division

2018 NSSC 13, 461108, 463248
Motion for disclosure of cabinet document and affidavit allowed in part.
October 30, 2018
Nova Scotia Court of Appeal

2018 NSCA 83, CA 475635
Appeal dismissed. Cross-appeal allowed in part.