Battle over 5-figure pay hikes for federal judges is causing unease in legal circles

The union soldier authorities and thomas more than 1,000 federally decreed book of judges are at odds over the best way to settle an ongoing salary dispute, raising concerns in both the legal and political community that the case could end up tarnishing the judiciary's reputation.

The government refused last year to grant judges a salary increase of $28,000 to $36,000, as proposed by an independent committee.

Judges in line for a raise currently earn between $398,000 and $510,000 per year.

Two associations of judges took the matter to court, arguing Ottawa did not adequately justify its rationale for rejecting the the Judicial Compensation and Benefits Commission's salary recommendation.

"This entire application is a huge strategic error on behalf of the judges," said Adam Dodek, a law professor at the University of Ottawa.

"In a time when public judges are under attack and finding fewer and fewer defenders, this ill-advised challenge is likely to further decrease public confidence in the administration of justice."

The Federal Court is scheduled to hold hearings on the matter in September, after a series of disputes over the best venue and judge to hear the case.

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In February, the Canadian Superior Courts Judges Association suggested sending the case to the Supreme Court. But Ottawa refused to directly seek the opinion of the country's top court, through what is known as a reference.

In a letter addressed to the Federal Court, Ottawa subsequently suggested the case should be heard by a retired judge.

According to the government, this would "address any reasonable public perception of bias" stemming from a judge ruling on a case affecting their own compensation.

The association objected to that proposal, arguing Ottawa should have formally filed a recusal application and made a clear case that a sitting judge would be in a conflict of interest. It noted that the salary increases would still apply to judges at the appeal level — including the Supreme Court of Canada.

Ultimately, the Federal Court sided with Ottawa and appointed former judge Alexandra Hoy to hear the case this fall. She retired from the Court of Appeal for Ontario in 2023. 

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Dodek, the former dean of the University of Ottawa's common law section, is urging the judges to drop the case, boiling down the issue to "judges determining the salaries of judges."

Trevor Farrow, dean at Osgoode Hall Law School in Toronto, said the government and the judges need to tread carefully to avoid undermining the reputation of a key democratic institution.

"It puts the judges in an awkward position to have to do this, it puts the government in an awkward position to have to defend it and it puts the public in a weird position to have to understand it," Farrow said.

"What's really at stake here is perception of justice, trust in the judiciary and trust in the rule of law."

The Bloc Québécois said the federal judiciary unfortunately finds itself acting as both "judge and party" in this dispute against the federal government.

"I am very uncomfortable with this situation," said Bloc Québécois MP Rhéal Fortin.

Fortin criticized the federal government's refusal to endorse the position of the review commission. But he also criticized the judiciary for deciding to take the matter to court.

"Everyday people seeing this will ask serious questions about the trust we should place in our justice system," Fortin said.

The Bloc Québécois proposes settling the matter in the House of Commons.

The Conservative Party did not respond to a request for comment by deadline.

Active since 1999, the review commission aims to protect judicial independence, which includes the independent determination of judges' compensation.

However, "the ultimate power to decide, in Canada and in the British tradition, has always belonged to the government," said Patrick Taillon, law professor at Université Laval in Quebec City.

"[The associations] have a right to spark a judicial debate on this issue, but one still has to choose the appropriate timing and cause wisely."

Taillon said Ottawa is likely aware that the public might not favour providing a big raise to federal judges in the current economic context.

"The federal government has no interest in speeding up the process," he said.

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According to the Canadian Superior Courts Judges Association and the Association of Associate Judges of the Federal Courts, the government did not offer a convincing justification for refusing the salary top-up that was designed to attract better candidates for judicial appointments.

The two associations cover most judges who would qualify for the increase. But Supreme Court of Canada justices, for example, are not represented by the groups mounting the legal challenge.

For its part, the government argued it would have been irresponsible to increase judges' salaries during a period of economic uncertainty and a tariff war with the United States.

In this context, Ottawa said that judges should be satisfied with the normal salary indexation process. 

The Harper government also rejected the review commission's recommendations in 2006, citing the economic situation. The judges and the government agreed at the time to postpone the salary increases to the next consultation cycle, which takes place every four years.

Reporter

Daniel Leblanc is a reporter with more than 20 years experience in investigative journalism and federal politics. He is a past winner of the Michener Award, the Charles Lynch Award and three National Newspaper Awards.

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