Canadian Lawyer

12 O C T O B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m B R I T I S H C O L U M B I A PROVINCIAL COURT JUDGES SEEKING TRANSPARENCY ON WAGES A case that has landed before British Columbia's Court of Appeal has B.C. judges demand- ing transparency in how govern- ment sets its wages and access to cabinet documents. The issue, which has wound through 12 B.C. Supreme Court and BCCA decisions including masters' reviews since 2012, spans both the former Liberal and current New Democratic Party governments. It centres on the three-year compensation review for B.C. provincial court judges carried out by the independent Judicial Compensation Commission. The JCC delivers its recommendations to B.C.'s attorney general and the chief provincial court judge. The cabinet discusses the recommendations and can make its own recommendations to the B.C. legislature for adoption. The Canadian Asso- ciation of Provincial Court Judges maintains such changes can only be made for specific reasons and it wants access to that decision-making process. Throughout the various cases, the AG's position has been one of pro- tecting cabinet submissions from disclosure on public interest immunity grounds. In the last BCSC case in August between the PCJA and the AG's department (which was an appeal of a master's hearing), Chief Justice Chris- topher Hinkson said the AG's position was that knowing documents might be disclosed could lead to those documents being "tailored in a manner that was less helpful in encouraging frank discussion by Cabinet with respect to JCC recommendations." Hinkson said the Supreme Court of Canada had endorsed the need for govern- ments to give full weight and participation to decision-making, considering that, "any Cabinet submission will not be tailored to mask that participation." He supported the master's finding that "the principle of public interest immun- ity did not mitigate against the disclosure of the Cabinet submissions." A day after the decision on Aug. 16, the AG filed for a review at the BCCA. The long-running debate began with the JCC's 2010 report, which was then rejected — in part — by the B.C. legislature. Subsequently, Justice Malcolm Mac- aulay carried out a judicial review, but the PCJA also asked for the disclosure of a report summary carried out by Neil Reimer, a senior policy and legislation analyst making recommendations to cabinet. Macaulay ordered in his reasons in Prov- incial Court Judges' Association of British Columbia v. British Columbia (Attorney General), 2012 BCSC 244 that the document be released. He also quashed the first legislature review and set the recommendations back for a second look, but again the legislature didn't adopt all the recommendations. A second judicial review (Provincial Court Judges' Assn. of British Columbia v. British Columbia (Attorney General), 2014 BCSC 336) was undertaken by Justice John Savage. He found that only three of 15 recommendations were not accepted and that government had fair reason for not accepting them. He dismissed the petition. But, by 2013, the JCC had undertaken another three-year compensation review and this second compensation review had some recommendations rejected by R E G I O N A L W R A P A L B E R T A GOVERNMENT BATTLES OUT-OF-PROVINCE BREWERIES OVER PRICE OF BEER S ection 121 of Canada's Constitution Act states: "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces." And it is s. 121 that is at the heart of a battle between the province of Alberta and two brew- ers, Great Western Brewing Company from Saskatoon and Steam Whistle Brewing from Toronto. The out-of-province brewers claim that a rebate the government of Alberta provides to small brewers in the province amounts to a tariff on beers brought in from other provinces. And that, they say, contravenes s. 121 of the Constitution Act. In June, Justice Gillian Mar- riott of Alberta's Court of Queen's Bench found that the mark-up was indeed contrary to provi- sions of the Constitution Act. Marriott ruled that Steam Whistle was entitled to close to $164,000 in restitution and Great Western was due more than $1.9 million from Alberta. The province has appealed, and the case will likely go before the Alberta Court of Appeal some time early next year. Andrew Stead of the Calgary office of McMillan LLP is Steam Whistle's lawyer and he will also represent the brewery in the appeal. For him, the issue is crystal clear. "It's OK for a government to discriminate on the size of a business, but it is not OK for a government to discriminate [against a business] based upon its geographic location in Canada." And that, says Stead, is exactly what the government of Alberta is doing. Stead says depending on what happens in the Court of Appeal and given the importance of the issues, he would not be surprised to see the matter go to the Supreme Court. – Geoff Ellwand STEPHEN HUI

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