Law Times

Page 2 sepTember 9, 2013 • Law Times NEWS JPs seek judicial review in salary fight after separate appeal dismissed lower increase despite the majority recommendation by a threemember remuneration commission for a 3.84-per-cent pay boost. In December, a Superior Court judge said the dispute wasn't justiciable through an interpretation of the salaries and benefits of justices of the peace regulation but instead through a judicial review. In a decision on Aug. 30, the Ontario Court of Appeal agreed. "The real dispute between the parties is about the respondent's response to the commission's recommendations for the 2008 remuneration of justices of the peace. The regulation that the appellant seeks to have interpreted is merely the implementation of that response," the Court of Appeal said. "The jurisprudence of the Supreme Court of Canada makes clear that in these circumstances judicial oversight is by way of judicial review of the response, on a standard of rationality, not BY YAMRI TADDESE Law Times T he Association of Justices of the Peace of Ontario has lost its appeal of a Superior Court ruling that said it should deal with its fight for a pay increase via judicial review and not through interpretation of a regulation by a judge. The association had been in talks with the Ministry of Government Services about a salary increase for Ontario's justices of the peace of 3.84 per cent, a number it said would be in line with an updated Statistics Canada wage-calculating tool. The new tool, according to association counsel James Morton's factum, is "a fully revised survey of employment data more accurately reflecting wage trends." But in the end, the government granted justices of the peace a 2.7-per-cent adjustment. The government went with a by judicial interpretation of the implementing regulation." The court said dealing with the issue through a judicial review would ensure that "the balance is preserved between judicial independence and the legislature's right to set judicial remuneration." The association is disappointed with the appeal court's decision, says Morton, who adds there's a possibility of seeking leave to the Supreme Court. "This question could very well have a national importance. It would not be foolish to seek a leave," he notes, adding that he hasn't received instructions to do so yet. But even before the outcome of the appeal, the association had launched a judicial review to cover its bases, according to Morton. The review had been pending the outcome of the appeal court's ruling, says Morton, noting the association will now proceed with it this month. The move, he told Law Times in January, is "an alternative." "In order to protect our position, we've commenced a judicial review and the judicial review says the government's refusal to accept the commission's recommendation is not reasonable," he said at the time. The question now becomes what motivated the minister to decide justices of the peace would only receive a 2.7-per-cent pay hike, says Morton. The association's judicial review application says remuneration for justices of the peace should follow the commission's recommendation. "Further, pursuant to the act, the recommendations of the commission are to be considered and the determination regarding remuneration is to be made by the lieutenant governor in council," the notice of application says. "The minister is not a member of cabinet and therefore his 2014 LEGAL RESOURCE GUIDE Find new clients in the Greater Toronto Area! Sponsor a page of exclusive content in The Legal Resource Guide (GTA Edition) and get your name in front of more than 150,000 GTAarea consumers. 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It also calls the minister's decision to go with a smaller wage increase "unreasonable." "The decision of the minister was made for improper purposes and was motivated by extraneous considerations and is therefore unreasonable," the notice states. LT SCC decisions still 'important' years later BY CHARLOTTE SANTRY Law Times J ust under a fifth of Supreme Court of Canada decisions remain important 15 years later, a CanLII study reveals. The research used informatics software and CanLII data to analyze how often, and in which contexts, court decisions have cited cases. It found that 19 per cent of Supreme Court of Canada decisions were still important after 15 years "where importance is defined as a positively trending pattern of citation." For all other jurisdictions, less than four per cent of cases remained important after 15 years. The seemingly low figure is due to the "high volume of perfunctory decisions" from provincial courts that may be fact specific, says report author Thom Neale. Neale is a web developer who previously worked as a legal editor at the New York State Court of Appeals where his work involved checking citations found in written decisions. He says the results of the study confirmed his feelings that "a large majority of cases fall into mediocrity immediately and are never really cited." But the large number of cases without much long-lasting impact doesn't necessarily reflect badly on the justice system, he says. "A case with similar facts might come up and [make] a former case irrelevant," he says. The study also found the lower courts of smaller jurisdictions issue decisions that have as lasting an impact as those from appellate courts in much larger jurisdictions. Decisions in less populous jurisdictions probably survive longer on average because "the overall volume of newly issued law is much lower in those jurisdictions, leading courts and practitioners to cite older decisions with greater frequency and duration," states the report. The study lists the top 100 cases still cited over time. The top case is R. v. Manninen, a decision that established standards for determining whether an erroneous jury charge in a criminal trial is grounds for reversal. LT

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