Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21 (38459)
“In November 2016, the Nova Scotia judicial compensation commission recommended an approximately 5.5 percent increase in the salaries of provincial judges in 2017‑18, a 1.2 percent increase in 2018‑19 and a 2.2 percent increase in 2019‑20. The provincial Attorney General provided a report to Cabinet concerning the commission’s recommendations. The Lieutenant Governor in Council then made an order in council, based on the report and recommendation of the Attorney General, reducing the rate of salary increase to nil in 2017‑18 and 2018‑19 and to one percent in 2019‑20. The Provincial Court Judges’ Association applied for judicial review of the order in council, and moved for a declaration that the Attorney General’s report should be part of the record on judicial review. The motion judge granted the declaration in part, concluding that all but the portions of the report that were protected by solicitor‑client privilege should form part of the record on judicial review. The Court of Appeal dismissed the Attorney General’s appeal.”
The SCC (9:0) allowed the appeal in part; and the motion judge’s declaration modified such that only the discussion of government‑wide implications in the Attorney General’s report and the communications plan be included in the record.
This appeal falls to be resolved in accordance with the framework developed in the companion appeal. That framework governs whether confidential Cabinet documents can form part of the record on a review pursuant to Bodner v. Alberta, 2005 SCC 44,  2 S.C.R. 286, a limited form of judicial review of a government’s response to a judicial compensation commission’s recommendations.
Applying that framework in this appeal, I conclude that there is some basis to believe that the Attorney General’s report may contain evidence which tends to show that the government failed to meet a requirement of the Bodner test. The public reasons given for the government’s decision to depart from the commission’s recommended increase in judicial remuneration provide some basis to believe that the government may have relied on improper considerations and may not have respectfully engaged with the commission process.
Having inspected the Attorney General’s report, I find that only two components, the discussion of government-wide implications and the communications plan, provide some evidence that the government may have failed to meet the Bodner test. The rest of the report is either protected by solicitor-client privilege or provides no such evidence, and will not form part of the record.
Since the discussion of government-wide implications and the communications plan reflect matters that may have been considered by Cabinet, I turn finally to public interest immunity, and find that the public interest in these parts of the Attorney General’s report remaining confidential is outweighed by the public interest in their being disclosed. Although there are several factors weighing in favour of these parts’ continued confidentiality, they are outweighed by their importance to the court’s determination of the merits of the application for Bodner review.
As a result, only components of the Attorney General’s report — the discussion of government-wide implications and the communications plan — should be produced as part of the evidence on Bodner review. That said, these excerpts are merely some evidence for the Supreme Court of Nova Scotia to consider in deciding the merits of the judicial review of the government’s response.
Some of the considerations mentioned in the discussion of government-wide implications and in the communications plan were not rational or legitimate bases on which to vary or reject the commission’s recommendations. If the Supreme Court of Nova Scotia concludes that Cabinet relied on these considerations in reaching its decision, then these documents would tend to show that one or more of the requirements from Bodner was not met. The fact that the legislature gave the Lieutenant Governor in Council the power to vary or reject the commission’s recommendations is not itself a reason to vary recommendations. Likewise, the impact of accepting a recommendation on labour negotiations is generally not a legitimate basis for varying a recommendation made by a commission: see Bodner, at para. 160. The communications plan indicates that the government may have been concerned about the risk of an uninformed public reaction.
Thus, the inclusion of these components of the Attorney General’s report in the record would help the reviewing court determine whether the government’s response was grounded in an improper purpose and whether the third part of the Bodner test, which considers whether the commission process has been respected such that the purposes of that process have been achieved, has been met. The exclusion of these parts of the report from the record may leave the reviewing court with an incorrect understanding of the considerations that may have informed the government’s response. It may also raise the question of whether the government provided legitimate reasons for departing from the commission’s recommendations. I am accordingly of the view that the interests of the administration of justice favour the disclosure of the government-wide implications in the Attorney General’s report and the communications plan appendix.
The level of decision making, the nature of the policy concerned, the contents of the discussion of government-wide implications and of the communications plan and the timing of the disclosure all weigh in favour of these components of the Attorney General’s report remaining confidential. Because the policy concerns a constitutional requirement relating to the justice system, and, thus, the administration of justice, it also weighs in favour of disclosure. The exclusion of this evidence from the record would undermine the reviewing court’s ability to deal with central issues on Bodner review: whether the government articulated legitimate reasons for departing from the commission’s recommendations; whether the government’s response was grounded in improper considerations and whether the government respected the commission process. The interests of the administration of justice thus strongly favour the disclosure of these parts of the Attorney General’s report. I conclude that the public interest in their disclosure outweighs the public interest in their remaining confidential.”