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In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, Gudmundseth Mickelson LLP successfully represented the Attorney General of British Columbia in a precedent-setting constitutional case. The case concerned whether a confidential Cabinet document must be disclosed in unique litigation involving the compensation of Provincial Court judges. In determining that the Attorney General did not need to disclose the Cabinet document, the Supreme Court of Canada was required to address and balance several important constitutional imperatives relating to the administration of justice and the separation of powers between the executive, legislative and judicial branches of the state.

CASEBritish Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20

COURT: Supreme Court of Canada

COUNSEL:  Stein K. Gudmundseth, Q.C., Andrew D. Gay, Q.C. and Clayton J. Gallant

THE FACTS AND HISTORY OF THE CASE:

Judicial compensation is set through a constitutionally-mandated process previously established by the Supreme Court of Canada, and implemented in British Columbia through the Judicial Compensation Act, S.B.C. 2003, c. 59. Every three years, a judicial compensation commission is appointed to make recommendations to the government concerning the salaries, allowances and benefits of Provincial Court judges. The Legislative Assembly is entitled to accept or vary the commission’s recommendations, but if it departs from the recommendations, then it must justify its decision with a public response that complies with certain constitutional requirements.

In 2016, a judicial compensation commission made recommendations to the government about the salary and benefits of Provincial Court judges in British Columbia. The Legislative Assembly accepted many, but not all, of the commission’s recommendations, and adopted the government’s proposed response which set out the basis for departing from the commission’s recommendations. The Provincial Court Judges’ Association subsequently commenced a judicial review of the government’s response and brought a motion to require the Attorney General to produce a confidential submission to Cabinet relating to the commission’s recommendations. The Master hearing the motion ordered the Attorney General to produce the Cabinet document, and appeals from the Master’s decision to the Supreme Court of British Columbia and the Court of Appeal were dismissed.

The Supreme Court of Canada unanimously found in favour of the Attorney General and allowed the appeal. The Court established a new test for disclosure of Cabinet documents in the judicial compensation context, which is intended to balance the interests of the executive in the confidentiality of its deliberations and the interests of the judges in preserving judicial independence. The test requires the party seeking the confidential Cabinet document to first establish that there is a basis to believe that the document may contain evidence which tends to show that the government failed to meet its constitutional obligations. Only then is the Attorney General required to produce the document for judicial inspection. If, upon inspection, the Cabinet document does provide evidence showing that the government’s response does not comply with the government’s constitutional obligations, then the Cabinet document can be produced, subject to the government establishing that its production is barred by another rule of evidence, such as public interest immunity or solicitor-client privilege. As the Provincial Court Judges’ Association had not provided any evidence or pointed to any circumstance to suggest that the Cabinet document could assist in proving that the government did not meet its constitutional obligations, the Attorney General was not required to disclose the Cabinet document.

The Court also addressed the doctrine of public interest immunity, which prevents the disclosure of a document where the public interest in keeping the document confidential outweighs the public interest in its disclosure. Given the strong public interest in keeping documents concerning Cabinet deliberations confidential, the Court affirmed that a strong countervailing public interest will usually be necessary to justify their disclosure.

WHY IS THIS CASE IMPORTANT?

This case establishes a new test for disclosure of confidential Cabinet documents in the constitutionally-mandated judicial compensation process, which applies in every province. The case also provides fresh guidance on the doctrine of public interest immunity, particularly as it relates to Cabinet deliberations, which will have an impact on future litigation involving provincial governments across the country.   The Supreme Court of Canada’s recognition of the strong public interest in maintaining the confidentiality of deliberations among ministers of the Crown, and its recognition that a submission to Cabinet is part of the deliberative process, will likely make it more difficult for litigants to obtain disclosure of Cabinet documents, subject to overriding concerns for the administration of justice.

FURTHER INQUIRIES

If you have further inquiries about this or other public law, complex commercial, or regulatory matters, please contact Stein K. Gudmundseth, Q.C.  or Andrew D. Gay, Q.C.