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The Supreme Court of Canada is seen in Ottawa, on June 12, 2020.

Adrian Wyld/The Canadian Press

The Supreme Court of Canada has ruled the vast majority of confidential cabinet documents in two provinces should remain secret, in cases dealing with how judges are paid.

The decision deals with two separate cases in Nova Scotia and British Columbia where lower courts had ordered the production of cabinet documents that are traditionally kept highly confidential.

In both provinces, independent commissions set up to review salaries for provincial court judges had proposed significant pay hikes, but the cabinets in both provinces rejected those recommendations and decided on smaller pay increases instead.

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The judges’ associations in both provinces applied for judicial reviews and wanted to see cabinet submissions that justified altering the recommended salary hikes.

In its unanimous decision today, the Supreme Court of Canada quashed the B.C. Court of Appeal’s decision ordering the B.C. government to produce the cabinet documents.

But in the Nova Scotia case, Supreme Court Justice Andromache Karakatsanis writes that most of the cabinet submission should remain confidential, except two components: a paragraph in one document labelled “government-wide implications” and an appendix to the report called the “communications plan.”

Karakatsanis says the exclusion of this evidence from the record would undermine the lower courts’ ability to determine whether a test that must be applied in decisions related to judges’ salaries was appropriately applied by the Nova Scotia cabinet.

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