Supreme Court of Canada rules on the disclosure of Cabinet documents in judicial compensation litigation

Date Closed

July 31, 2020

Lead Office

Toronto

On July 31, 2020, the Supreme Court of Canada issued a decision in two cases surrounding the confidentiality of Cabinet documents that contain recommendations about the compensation of provincial judges.

In accordance with the constitutional guarantee of judicial independence, independent commissions in British Columbia and Nova Scotia made recommendations about the compensation of judges appointed by those provinces. The provincial governments decided not to follow all the recommendations. Associations representing the judges challenged the governments’ decisions, and brought motions to compel the governments to produce Cabinet documents relating to how the decisions were made. Under normal circumstances, these Cabinet documents are treated as highly sensitive and confidential.

The lower courts in both provinces held that the governments had to disclose the Cabinet documents. The Supreme Court of Canada concluded unanimously that the British Columbia Cabinet document should remain confidential, and that the Nova Scotia document should be disclosed only in part. The Court affirmed that confidential Cabinet documents could only be ordered disclosed in litigation concerning judicial compensation under certain rare circumstances.

The Canadian Taxpayers Federation is a not-for-profit citizen’s group that advocates for lower taxes, less waste, and accountable government.

McCarthy Tétrault represented the Canadian Taxpayers Federation with a team led by Adam Goldenberg that included Stephanie Willsey, Amanda Iarusso, and Daryna Kutsyna.

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