Provincial and family court judges in Nova Scotia have finally gotten their day in court.
The association representing the province's 40 judges is arguing that salary levels imposed by the Nova Scotia government violate the Constitution and the Provincial Court Act.
It's a battle that has dragged on for five years and already made its way to the Supreme Court of Canada.
Now a provincial Supreme Court justice is hearing arguments about how the government of former premier Stephen McNeil imposed contracts that ran counter to recommendations from an arms-length tribunal set up expressly to determine compensation.
"From the very beginning, the government approached the process with a closed mind," Susan Dawes, a lawyer for the Nova Scotia Provincial Judges' Association, told Justice Ann Smith in a video appearance Wednesday from Manitoba.
Tribunal's authority changed
The decisions of the tribunal used to be binding and automatic. But in 2016, the province introduced legislation that stripped the tribunal of its authority to impose binding settlements, which the government argued it couldn't afford.
In 2017, the government used its newly won powers to overturn a recommendation for a 9.5 per cent salary increase. Instead, the government imposed a settlement that included no increases in the first two years and a one per cent increase in the third year.
Nova Scotia judges are among the lowest paid in the country. Even had the tribunal increase been granted, judges still would not have been paid higher than the national average, Dawes said in her submissions.
She pointed to a government communications strategy that voiced concerns about how a larger salary settlement for judges could complicate negotiations with teachers and public sector workers in the province.
"They were using this as a hammer with public sector unions," Dawes said.
Government docs obtained
The communications strategy and other redacted documents were released after a request from the judges' association as part of the judicial review. The province initially refused to hand over the documents, prompting a fight that ended in the Supreme Court in Ottawa.
The communications document also included advice that government members remind people that even with their current salaries, judges were in the top one per cent of income earners.
Dawes questioned the point of having a tribunal if it is required to abide by the province's fiscal plan, which she described as "a matter of political judgment."
Lawyer calls for settlement proposed in 2017
The judges' association is asking Smith to issue declarations, saying the government has acted contrary to the Provincial Court Act and the Constitution, and that its position was not adequately supported by facts.
Dawes said Smith should impose the wage settlement proposed by the tribunal in 2017. She said the government has demonstrated a lack of respect for the process, citing its decision to refer the matter back to cabinet in the event Smith rules in the judges' favour.
The legal challenge initially named McNeil and Diana Whalen, who was then attorney general, as respondents. Both have since left politics.
Lawyers for the government are expected to make their case Thursday.
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