The Court of Appeal for Ontario released its reasons today in Masters’ Association of Ontario v. Ontario, 2011 ONCA 243, affirming that the current process for setting the remuneration of Case Management Masters is unconstitutional and declaring that certain legislative provisions relating to the tenure and remuneration of Case Management Masters is violative of the principle of judicial independence.
At issue was the enactment of Order-in-Council 458/2003, which provided for the salaries of Case Management Masters adjusted between 2002 and 2009 as follows:
Effective Date Salary ($)
April 1, 2002 155,000
April 1, 2003 164,341
April 1, 2004 164,341
April 1, 2005 174,721
April 1, 2006 174,721
April 1, 2007 184,928
April 1, 2008 190,463
April 1, 2009 190,463
According to Justice MacPherson (Gillese and LaForme JJ.A. concurring):
 In the same time frame, the salary of traditional Masters, pegged by law to the salary of provincial court judges, has risen from $172,210 to $248,057. In other words, the salary of Case Management Masters has risen just over $35,000 whereas the salary of traditional Masters has risen about $76,000 in the same seven-year period.
The application judge, Platana, J. had suspended the declaration of invalidity for a period of 12 months, to August 5, 2011, “to allow the government to make legislative changes to create an independent, effective and objective process for determining the remuneration and tenure of Case Management Masters.”
The Crown sought an order setting aside the remuneration-related elements of Platana J.’s judgment, failing which the Crown sought an extension of the stay period to 12 months after the release of this decision. The Masters’ Association cross-appealed the remedy of declaration of invalidity made by the application judge, submitting that “remedies of severance and reading in should be applied to give Case Management Masters and traditional Masters the same level of judicial independence (and salary and benefits).”
The Court of Appeal dismissed the appeal and cross-appeal, with the exception that para. 1 of the formal Judgment be amended by substituting “Order-in-Council 458/2003” for “paragraph 53(1)(b) of the Courts of Justice Act, R.S.O. 1999, c. 43”. MacPherson J.A. also ordered an extension of the suspension of the declaration of invalidity in para. 3 of the formal Judgment to “a period of 12 months from the date of the release of this decision”.
With respect to judicial independence, Justice MacPherson reviewed the leading authorities and held that:
“…the constitutional principle of judicial independence requires a “special process” for dealing with the question of judicial remuneration, that the goal of the process is to be “independent, effective and objective”, and that there must be an “independent body” involved in, at a minimum, making recommendations to governments about judicial remuneration.” (at para.31).
The learned justice adds,
“ I share the view of the application judge that this is what is missing in the special process set out for Case Management Masters in Order-in-Council 458/2003. There is no “body” or “entity” or “commission” or “person” between the government and the judiciary; there is no “institutional sieve”.
 The Crown contends that the institutional sieve is the SMG3 classification. However, that cannot be. The SMG3 classification is established and controlled by the government; it is the precise opposite of an intermediary at arm’s length from the government.
 Moreover, to my eyes, there is a glaring irony in the Crown’s anchor for its submissions, the need for flexibility in the design of “special processes” for dealing with judicial remuneration, and the Crown’s proposed outcome flowing from such flexibility, a linkage in perpetuity between the salaries for Case Management Masters and a single classification in the Ontario public service, the SMG3 classification.
 The linkage, in perpetuity, between Case Management Masters’ salaries and the SMG3 classification does not permit the process described in these two cases to develop, unfold and deliver.
 The perpetuity point is also a complete answer, in my view, to the Crown’s assertion that ODJA and other cases permit reliance on an objective comparator in the “special process” for setting judicial remuneration. I have no trouble with the government and the judiciary identifying and relying on comparators, including comparators from the public sector, in the “special process”. However, what ODJA contemplated, and what is constitutionally permissible and valuable at a policy level, is the use of a comparator as a factor, even an important factor, in the “special process”. That said, a comparator cannot be the sole factor and it certainly cannot be the sole factor in perpetuity.
 On this point, I agree with the application judge, who said:
Selecting a comparator, and assuming that it will be appropriate for all eternity, is short sighted and doomed to fail if there is no process in place through which judicial officers can challenge the appropriateness of that comparator in the future.
 To this I would simply add that it should be open to governments as well to argue that changing conditions render continuing adherence to a particular comparator inappropriate.