Must cabinet documents be produced in judicial compensation review? Maybe.

  • September 30, 2020
  • Ewa Krajewska and Neil Abraham

On July 31, 2020, the Supreme Court of Canada released decisions in two companion cases that are the latest development in the now decades-long debate over the reviewability of governments’ judicial compensation decisions. These decisions – one  from British Columbia and one from Nova Scotia – address the circumstances in which the government will be required to disclose documents considered by provincial cabinets in forming judicial compensation decisions, when those decisions are subject to judicial review.

The CBA retained Borden Ladner Gervais LLP and intervened in these appeals to continue its advocacy in such matters. The CBA’s long-standing position on the question of judicial compensation is that the judicial compensation framework must be guided by the fundamental constitutional principle of judicial independence. This means that judicial compensation proceedings must be structured to protect judicial independence, which in turn, safeguards the fair and effective administration of justice.

The CBA intervened in these appeals to argue that all materials that form part of the judicial compensation decision-making process, including cabinet materials, ought to be presumptively subject to disclosure under judicial review. The CBA also argued that the reviewing judge should be given the opportunity to examine the materials on a confidential basis in order to determine whether the government’s explanation for non-disclosure should be accepted.

The Supreme Court of Canada in its unanimous decisions held that disclosure of cabinet materials might be available in judicial compensation proceedings where the information is relevant and not subject to any other exclusionary rule, such as public immunity.

The court agreed with the CBA’s submission that the reviewing judge ought to be able to examine the impugned documents and be the ultimate decision-maker with respect to whether disclosure is appropriate. The court’s holding on this point is important because it means that an independent court will decide the scope of the record, rather than the responding government itself.

However, the court introduced an initial burden on applicants seeking disclosure before the reviewing judge will inspect the impugned documents. The applicant judges’ association must demonstrate why the documents in question are relevant to the issues for determination, without inspecting the documents. By putting this initial burden on the applicant judges’ association, in the author’s view, the court has circumscribed the availability of disclosure.

In most cases - like in the British Columbia matter – the applicant may have no knowledge of what is contained in the impugned cabinet documents. The Nova Scotia matter provides one example of the rare circumstances where threshold relevance is established; in that case, other publicly available information suggested that the cabinet documents in question might provide relevant evidence. It is important to note, though, that the existence of corroborating information is likely the exception rather than the rule, given the sensitive nature of cabinet information.

The authors are concerned that by adding this threshold burden on the applicants may effectively prevent judges’ associations from seeking disclosure of cabinet materials. While it may be the case that the court’s decisions in these appeals will result in reduced litigation (a goal of the Supreme Court of Canada’s decisions in judicial compensation matters), this reduction will not be the consequence of more effective and transparent proceedings.