Schrager, Healy, Bachand

Appeal from a judgment of the Superior Court dismissing an application for judicial review. Dismissed.

The Act respecting the process for determining the remuneration of criminal and penal prosecuting attorneys and respecting their collective bargaining plan (CQLR, c. P-27.1) provides that it is up to an independent committee on remuneration to ascertain, every four years, various aspects of this remuneration. The committee then makes a report containing its recommendations. It gives it to the Government, which tables it in the National Assembly with the possibility of making remarks on the merits of the recommendations in the report. The National Assembly may, by a resolution stating the reasons on which it is based, approve, amend, or reject the recommendations.

A committee on remuneration was formed for the four-year cycle from April 1, 2019, to March 31, 2023. In the report that was made, there was a disagreement between the three committee members. The two majority members recommended an increase that was higher than the one proposed by the dissenting member. When the report was tabled in the National Assembly, the Government explained the reasons for its disagreement with the majority members of the committee and proposed to give effect to the dissenting member's recommendation. The National Assembly adopted a resolution endorsing the Government's position and its justifications set out in its response. The Superior Court dismissed the application for judicial review brought by the Association des procureurs aux poursuites criminelles et pénales against the National Assembly's resolution and the Government's response.

The applicable standard of review on appeal of a judicial review is the one stated in Agraira c. Canada (Public Safety and Emergency Preparedness), (S.C. Can., 2013-06-20), 2013 SCC 36, SOQUIJ AZ-50978691, 2013EXP-2099, J.E. 2013-1121, [2013] 2 S.C.R. 559. According to this analytical framework, it must first be determined whether the instance below used the appropriate standard of review and applied it correctly. The trial judge could not apply the standard of reasonableness set out in Canada (Minister of Citizenship and Immigration) v. Vavilov (S.C. Can., 2019-12-19), 2019 SCC 65, SOQUIJ AZ-51654335, 2020EXP-27, [2019] 4 S.C.R. 653. The Government's response and the National Assembly's resolution are legislative acts, not administrative ones. The judge deemed that the legitimacy of the standard of review set out in Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), (S.C. Can., 2005-07-22), 2005 SCC 44, SOQUIJ AZ-50324583, J.E. 2005-1362, [2005] 2 R.C.S. 286 (Bodner) is based on the constitutional principle of judicial independence and the fact that criminal and penal prosecuting attorneys (CPPA) have comparable constitutional independence. He determined that the standard in Bodner was applicable. Logic and the case law support his conclusion.

By removing the CPPA’s right to strike, the Government had to replace it with a real dispute resolution mechanism. It chose to establish a mechanism similar to the one used to determine judges' remuneration. The application of a less exacting standard than the one in Bodner, however, is not justified, despite the two mechanisms not having the same legal source. In this case, the test established in Bodner may be reworded as follows: (1) Did the Government articulate a legitimate reason for departing from the committee's recommendations? (2) Do the Government’s reasons rely upon a reasonable factual foundation? (3) Viewed globally, has the commission process been respected and have the purposes of the commission — providing a real dispute resolution mechanism and depoliticizing the setting of CPPA’s remuneration — been achieved? The trial judge correctly applied the standard described in Bodner. During his examination of the Government's reasons, he could analyze them as a whole and re-order their presentation for the purpose of the judicial review. Furthermore, he committed no reviewable error in applying this standard.

Text of the decision: http://citoyens.soquij.qc.ca