Law360 Canada (November 21, 2025, 6:36 PM EST) -- The association representing Canada’s federally appointed judges decided this week to seek judicial review of Ottawa’s rejection of an independent judicial pay commission’s two key recommendations — including the commission’s advice that a $28,000 salary boost (on top of mandatory annual indexing) is necessary to keep attracting outstanding lawyers to the bench.

Law360 Canada has learned that the Canadian Superior Court Judges Association (CSCJA) informed its members on Nov. 17 that the association’s board of directors decided last weekend to ask the CSCJA’s legal counsel to seek judicial review of the Carney government’s Nov. 3 formal response to the July 11 report and recommendations of the seventh federal Judicial Compensation and Benefits Commission.

The CSCJA, which represents nearly all 1,188 judges who serve on the country’s superior trial and appeal courts, the Federal Court, the Federal Court of Appeal and the Tax Court of Canada, did not directly respond to Law360 Canada’s query asking whether the association is proceeding to judicial review.

“The association is concerned with the government’s response,” spokesperson Heather MacGregor replied. “In light of the government’s refusal to implement the unanimous recommendations of the commission, the association is currently evaluating the best way to proceed,” she said by email. “We will be able to comment once a formal course of action is taken.”

The deadline for the judiciary to apply for judicial review is in the first week of December.

Informed sources told Law360 Canada the judges’ move to judicial review emanates from the judicial branch’s concern to ensure that the integrity and efficacy of the independent quadrennial commission process is preserved, now and into the future.

According to one member of the federal benches, who spoke on condition of anonymity, the government’s explanation for its rejection of the commission’s salary recommendations does not meet the constitutionally required standard of rational justification. In their view, the government’s response fails to show respect for the judicial office, judicial independence and the commission process, partly because it reiterates government arguments on pay, which were rejected by the commission.

If the judiciary lets the response stand, without challenge, “the system is broken,” the judge opined.

The “integrity of the quadrennial system” is the judiciary’s main concern, echoed another judge who pointed out that the commission unanimously found that a $28,000 salary increase is necessary to keep attracting outstanding private bar members to the bench.

“Even Mr. Carney’s nominee agreed,” the judge pointed out. “Existing Supreme Court of Canada jurisprudence suggests, in my … opinion, that the recommendation of the commission may only be set aside in the context of government-wide salary freezes. That is not happening in the federal sector, and indeed negotiated cost-of-living and other increases are taking place across the system. Compensation of senior executives has jumped lately [to] well over $500K. It seems to me the CSCJA has a good case.”

However, a former judge, Colin McKinnon of Arbitration Place in Toronto, disagreed. “Objectively speaking, when you read the response of the government, I think it’s an appropriate and reasonable and responsible response, given the uncertainty we have right now with the American tariffs and our own economy suffering, as was pointed out by the government in their response,” he opined. “I think that to increase judicial salaries to the extent that was recommended by the commission would not be justified.”

McKinnon, who is also a former prominent civil and criminal litigator in Ottawa who spent 23 years on the bench and once led the Ontario Superior Courts Judges’ Association, said senior private practice lawyers in centres like Montreal, Toronto and Vancouver do make more than judges, “but the judicial office is more than just a private concern,” he emphasized. “It’s a public service, and that has to be factored into the decision of whether to apply to be a judge or not. Being a judge in Canada constitutes an enormous privilege which cannot be quantified in money alone — that’s the part that is unaddressed in the quadrennial submissions.”

McKinnon also suggested that judicial review in Canada’s current difficult economic climate would not be successful and could be counterproductive by reflecting poorly on the judiciary’s image. “The optics of challenging a [government] decision — which basically says, ‘Hey, you’re being paid $400,000 plus a gold-plated pension, [which] is enough,’ … — in these economic times, I think would not pass the smell test.”

Osgoode Hall Law School law dean Trevor Farrow did not comment on the specifics of the disagreements between the government and the judiciary, or on the commission’s recommendations.

But speaking generally, Farrow said he is concerned that the integrity of the quadrennial commission process be preserved.

“These are important jobs, and they need to be paid properly,” he explained. Judicial independence must “transcend political parties and political will, because it is ultimately the independence of our judiciary which guarantees core values like the rule of law,” he said. “And my concern about the issue is not so much whether the government has the salary exactly right or not, but I do care that this process does not become political. I think that would be a terrible thing for this country. So far, we enjoy the benefit of a robust, independent and high-quality bench and everyone, and all governments of all stripes, reap the benefits of that. We need to do everything we can to protect that.”

University of Ottawa law professor Adam Dodek remarked that “this is just the latest round in more than three decades of conflict between the government and the judiciary over remuneration.”

He said, “There appears to be no way out because they are locked in a constitutional straitjacket imposed by the Supreme Court of Canada in 1997 in the Provincial Judges Remuneration Reference.”

Dodek noted that in the P.E.I. Judges Reference case, “Chief Justice Lamer said that the Constitution required judicial remuneration commissions in order to end the conflict between the judiciary and the government. That clearly has not happened, and the two have been stuck in this adversarial process ever since, with no way out.”

The three-person quadrennial commission — composed of a nominee of the government, a nominee of the judiciary and a jointly nominated chairperson — is an independent body established every four years under the federal Judges Act to review and make recommendations to the federal minister of justice on the adequacy of the salaries and benefits of federally appointed judges and associate judges.

The commission’s mandate is rooted in the constitutional principle of judicial independence, i.e., the need for judges to have sufficient financial security to perform their duties without influence from government, which is the most frequent litigant before the courts.

(The groundbreaking Supreme Court decision in the PEI Judges Reference, [1997] 3 S.C.R. 3 held that judicial independence: prohibits negotiations over pay and benefits between the judiciary and other branches of government; requires that judicial pay does not fall below an as-yet undefined constitutional minimum; and requires regular review of the adequacy of judicial compensation by an “independent, objective and effective commission.” The commission must consider any proposed changes to judicial compensation before they are implemented.)

Although the quadrennial commission’s recommendations are advisory and non-binding, the government must still publicly give reasons explaining why it departs from the commission’s recommendations — which response the judiciary has the option of challenging as unreasonable before a court.

The Supreme Court of Canada said in 2020 that the three-part test for determining whether a government’s decision to depart from a commission’s recommendations meets the requisite standard of rationality is: (1) whether the government has articulated a legitimate reason for departing from the commission’s recommendations; (2) whether the government’s reasons rely upon a reasonable factual foundation; and (3) whether the commission process has been respected and its purposes — preserving judicial independence and depoliticizing the setting of judicial remuneration — have been achieved: British Columbia (A.G.) v Provincial Court Judges’ Association of BC, 2020 SCC 20.

The Canadian Judicial Council, with which the CSCJA jointly filed evidence and submissions to the quadrennial commission earlier this year and late last year, told Law360 Canada that the council of 44 chief and associate chief justices “is considering the matter [of judicial review] and has no comments to make at this time.”

As well, the Federal Court’s 10 associate judges, who made separate submissions to the quadrennial commission, are expected to file for judicial review, sources told Law360 Canada.

The associate judges did not, however, respond to questions conveyed to them through their counsel, Andrew Lokan of Toronto’s Paliare Roland, which asked if the associate judges are proceeding to judicial review and, if so, why.

Last July, the quadrennial commission, after considering hundreds of pages of submissions and evidence provided by the government and the judiciary, recommended that the judges should get a substantial lump sum salary increase — $28,000 — as their approximately half-a-million-dollar pay package, which is indexed and includes a defined-benefit pension and other benefits, has failed to keep up with the compensation of mutually accepted comparators, including with the income of senior members of the bar in big cities such as Toronto and Vancouver.

“The commission concludes the current judicial salary and benefits are inadequate, and this inadequacy is having an ongoing adverse effect on attracting outstanding candidates to the judiciary,” concluded the 67-page report signed by the quadrennial commission’s chair, Anne Giardini, the judiciary’s nominee, Douglas Hodson, and Graham Flack, the nominee of the minister of justice.

“An increase to the judicial salary is required to ensure outstanding candidates continue to be attracted to the judiciary,” the quadrennial commission found, echoing the warnings by senior judicial leaders over the past few years.

(A look at the latest statistics, newly posted on the website of the Commissioner for Federal Judicial Affairs, indicates that applications by lawyers for the federal benches have been going down, falling in the year ending Oct. 28, 2025, to 269 applications from 379 applications in 2023-2024 and from 410 applications in 2022-2023.)

The quadrennial commission also accepted the submission of the Federal Court’s associate judges’ that their salary should be increased to 95 per cent of the salary of Federal Court judges (up from 80 per cent) to reflect the associate judges’ expanded jurisdiction to conduct trials in cases up to $100,000, as well as the fact that associate judges case-manage “the bulk” of the Federal Court’s burgeoning caseload, including interacting more frequently with self-represented litigants. The chief justice of the Federal Court gave evidence to the commission earlier this year, outlining the low number of lawyers applying for the associate judge posts with the court.

In explaining why it rejected both of the specific salary recommendations made by the commission on July 11, the federal government cited in its Nov. 3 response “a significant deterioration in the Canadian financial outlook and a carefully considered difference of perspective on the evidence presented to the commission and how it should be weighed,” stating it “respectfully disagrees with some of the Commission’s findings.”

Among other things, the government cited “recent developments regarding the criterion of the prevailing economic conditions in Canada,” including the imposition of new U.S. tariffs, uncertainty over future U.S. trade actions, and current trade actions that weigh on tariff-exposed industries. This is leading to the stalling of economic growth in the first half of this year — with a loss of 40,000 jobs and an unemployment rate sitting at about seven per cent in August, the government said.

Moreover, as a result of the recent significant increase in funding required from NATO members, the prime minister announced last June that Canada will meet its two per cent of GDP target this fiscal year, requiring an additional $9-billion investment, the government said. This cannot be viewed, practically speaking, as “entirely discretionary” given the need for Canada to comply with its international obligations and commitments, and the necessity “to protect Canadian security and sovereignty in an increasingly dangerous and divided world, characterized by more frequent and volatile global conflict,” said the government’s response.

“In the government’s view, recent developments … militate strongly in favour of Canada only incurring new fiscal obligations necessary to uphold and safeguard Canadian sovereignty,” the government stated.

“While this includes safeguarding the critical public institutions that underpin Canadian democracy, … the government is of the view that, based on the evidence before this Commission, judicial salaries are adequate and, in any event, cannot be the source of new fiscal expenditure at a time of comprehensive expenditure review, including possible public sector job losses,” the government wrote. “Judicial salaries have experienced steady long-term growth, exceeding increases to the cost of living thanks to annual indexing based on the IAI (Industrial Aggregate Index), and they are likely to continue this trend over the next four years.”

The government also said that although the judges have not had an increase to their judicial salary since 2006, apart from regular annual IAI indexing, their salaries have risen in most years beyond the increases to the cost of living, growing from being 7.3 per cent behind the comparator salary of a DM3-level federal deputy minister in 2011 “to being 2.3 per cent ahead today.”

The government said it also “fundamentally disagrees” with the commission’s finding that the evidence before it demonstrated that there are serious challenges in attracting private sector lawyers to the bench due to a gap in the judiciary’s remuneration as compared to senior private bar lawyers.

In the government’s view, the evidence, including statistical data provided by the Office of the Commissioner for Federal Judicial Affairs, “showed no shortage of applicants rated as recommended or highly recommended, something effectively acknowledged by the Commission at para. 163” of its report.

“It also showed that the proportion of applicants appointed from the private sector had recently risen, something acknowledged by the Commission at para. 164,” the government said. “Appointment announcements over the quadrennial period demonstrate that partners in private firms from large metropolitan centres, who are presumed to be the highest earners in private practice, continue to be appointed.”

In declining to make the recommended, or any, increase in salary for the associate judges, the government also disagreed with the commission’s approach to the evidence and with the commission’s perspective on the office of associate judge.

“The office of associate judge is a junior judicial office,” the government said. “In the government’s view, the fact that several associate judges have been appointed judges of the court does not support the proposition that the associate judge salary is too low. On the contrary, it indicates that candidates of the highest calibre are attracted to the office.”

“Furthermore,” reasoned the government, “if associate judges were paid as judges, or so close to it as to make little difference, this would raise the question: should the office of associate judge continue, or should the associate judges simply be appointed judges of the court and the office discontinued?”

The government also rejected the commission’s expressed view that the government should return to the commission before issuing the government’s response, in the event the government intended to rely on any significant changes in the country’s economic circumstances that occurred between the date of the commission’s hearings last February and the government’s response.

“While the jurisprudence contemplates the possibility of a judicial compensation commission being asked to consider proposed changes to judicial salaries or benefits between its regular inquiries, the Supreme Court in Bodner also expressly stated that ‘[i]f a new fact or circumstance arises after the release of the commission’s report, the government may rely on that fact or circumstance in its reasons for varying the Commission’s recommendations,’” the government said.

The quadrennial commission compared the earnings of private-sector self-employed lawyers (an accepted comparator) to the total compensation of a federal puisne judge (i.e., annual judicial salary plus annual value of judicial annuity). The commission found that the judges’ annual total compensation of $499,120 in 2022 was 48 per cent lower than the private-sector comparator of $739,352.

As of April 1, 2025 (i.e., without the recommended raise), a puisne judge’s annual salary stands at $414,900 (not including the value of the judicial annuity or disability benefits).

If the raise recommended by the commission were to be implemented, federally appointed judges’ salaries, retroactive to April 1, 2024, would be:

• Supreme Court of Canada: chief justice $546,100; puisne judges $505,700;
• Federal Court of Appeal, Federal Court, Tax Court and Court Martial Appeal Court: chief justices $465,700; associate chief justices $465,700; puisne judges $424,700;
• Provincial and Territorial Courts of Appeal and Superior Courts: chief justices $465,700; senior associate chief justices $465,700; associate chief justices $465,700; puisne judges $424,700.

The commission’s recommended salary increase of $28,000 (retroactive to April 1, 2024, and following mandatory annual statutory indexing) was less than half the $60,000 the judges sought, but was still a significant endorsement of the judges’ submissions, in contrast to the federal government’s submission that the judges are still paid enough to attract outstanding jurists and therefore no pay increase is required, apart from the mandatory annual statutory indexing.

The government’s longstanding argument that the judges’ pay (with indexing) is adequate was accepted by previous quadrennial commissions, including the sixth quadrennial commission, which recommended in 2021 that federal judicial salary increases should be limited to statutory indexing until 2024.

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