Summary

Keywords

Constitutional law - Division of powers, Judicial independence, Administrative law, Judicial review - 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?.

Summary

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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.