Date: 19980216
Docket: T-601-97
| IN THE MATTER of an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, to review and set aside the Decision of Appeal Board Chairperson Rosenbaum dated February 28, 1997, respecting appeals filed pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (P.S.C. File No.: 96-NAR-02175) |
B E T W E E N :
TERESA JOHNSON and JIM WARRINER
Applicants
- and -
ATTORNEY GENERAL OF CANADA, JEAN D'AMELIO-SWYER,
JANICE MORGAN, and JACQUELINE SHERMAN
Respondents
REASONS FOR JUDGMENT
HUGESSEN J.
[1] This application for judicial review attacks the decision of an Appeal Board appointed pursuant to section 21 of the Public Service Employment Act1. It raises an important question as to the proper interpretation of the 1993 amendments to that section2. The applicants also raise a question as to certain findings made by the Appeal Board but their arguments on that question have little merit and may be quickly disposed of.
[2] The Appeal Board whose decision is here under attack was the third appointed to deal with appeals launched by either or both of the applicants in respect of the same closed competition, the closing date for which was January 21, 1994. A first appeal, decided in July 1995, was allowed on the basis that there were significant knowledge requirements for the job which had not been assessed by the Selection Board. Following that decision, the Public Service Commission expressed the view that some of the requisite knowledge had in fact already been sufficiently, albeit indirectly, assessed and directed the Selection Board to conduct a further assessment of the candidates with regard only to some aspects of the required knowledge. As a result of that assessment, a new eligibility list was issued which did not differ in any respect material to this application from the one which had been issued previously. This led to a second appeal which was allowed by an Appeal Board in March 1996 on the grounds that it was not open to the Commission to decide, contrary to the findings of the first Appeal Board, that part of the requisite knowledge had already been assessed and that a new assessment would accordingly be undertaken with respect to only some aspects of the required knowledge. As a result of that decision, the Commission ordered a further assessment of those aspects of knowledge which had not been directly assessed following the first Appeal Board decision. This was done by administering a written examination to the four candidates on the existing eligibility list. The result was the issuance of a new eligibility list in June 1996 listing the same four candidates in the same order as before. That, in turn, gave rise to a third appeal by both the present applicants, one of whom had been found not qualified and the other of whom was placed last on the list. The Appeal Board appointed to hear that appeal allowed it with regard to certain relatively minor aspects which are not now in issue but dismissed it insofar as it sought to attack the appointment of the two candidates who had been successful from the outset of the competition and had been appointed to and had continued to hold the positions in question since prior to the hearing of the first appeal. Hence, the present application.
[3] As previously indicated, the applicants' principal and only serious argument has to do with the proper interpretation to be given to the 1993 amendments to section 21 of the Public Service Employment Act. Those amendments, and particularly the new subsections (3) and (4) led the Appeal Board to conclude that the applicants were not entitled to raise on the third appeal any grounds that were not clearly related to the corrective measures taken by the Commission following the second appeal.
[4] Section 21 of the Public Service Employment Act, as amended, now reads in its entirety as follows:
| 21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. (1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard. (2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person. (3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect. (4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit. (5) Section 10 and the rights of appeal provided by this section do not apply to appointments made under subsection 29(1.1) or (3), 30(1) or (2) or 39(3) of this Act or subsection 11(2.01) of the Financial Administration Act or any regulations made under paragraph 35(2)(a) of this Act. |
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre. (1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre. (2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications. (3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection. (4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite. (5) L'article 10 et le droit d'appel prévu au présent article ne s'appliquent pas dans le cas où la nomination est faite en vertu des paragraphes 29(1.1) ou (3), 30(1) ou (2) ou 39(3) ou des règlements d'application de l'alinéa 35(2)a), ou en vertu du paragraphe 11(2.01) de la Loi sur la gestion des finances publiques. |
[5] On the hearing of the third appeal, the applicants attempted to raise three entirely new arguments which had not been raised in the two previous appeals. The applicants describe those arguments as follows in their memorandum:
| (a) as Applicant Johnson had acted in one of the instant positions for the period from May 1995 to May 1996, the Selection Board erred in failing to account for this; |
| (b) following the issuance of corrective measures, new employees had entered into the area of competition. Given this enlargement in the pool of candidates, the Applicants maintained that, without considering these additional employees, the eligibility list was established in a manner inconsistent with the merit principle; and |
| (c) due to the delay as a result of the appeals and the initiation of corrective measures, selected candidates Sherman and Morgan had received an unfair advantage by virtue of the fact that they had been working in the positions which were the subject matter of the appeals since 1993. |
(Application Record of the Applicants, page 150)
[6] Notwithstanding that the Department was willing to concede all three points, the successful candidates objected to their being raised. The third Appeal Board gave effect to the objection and declined on jurisdictional grounds to enter into any consideration of those questions. The Board said:
| ... the only matters that could be raised before a second Appeal Board and, in this case, before me as the third Appeal Board, are those related to the measures taken to remedy the defect identified in the decision of the immediately previous Appeal Board which was the ground upon which it had allowed the appeal or matters that flow directly from those measures... |
(Application Record of the Applicants, pages 44-45)
[7] The applicants argue that this interpretation of subsections 21(3) and 21(4) is wrong both textually and contextually within the broader policy considerations of the Act as a whole.
[8] Textually, they suggest that a proper reading of subsection 21(4) leads to the conclusion that any breach of the merit principle may be put in issue on a second or subsequent appeal since, if it can be shown that the best candidate was not chosen, it is obvious that the corrective measures "did not result in" selection according to merit. Contextually, the applicants suggest that the interpretation adopted by the Appeal Board and now supported by the Attorney General represents a major breach in the merit principle and an unintended change of a number of rules well established by both jurisprudence and Commission practice. That is, where the pool of possible candidates has been significantly enlarged, or where the qualifications of a particular candidate have significantly varied with the passage of time, both caselaw and practice have required the holding of a new competition where an Appeal Board has found the original competition to be defective.3
[9] As far as the textual argument is concerned, it is clear that it cannot survive an examination of the French version for subsection 21(4). While the English version may be conceded to be ambiguous or at least ungrammatical, the French version is of pitiless clarity. The subsection is clearly restrictive of rights of appeal following the taking of corrective measures and a reading of the French text can leave absolutely no doubt that the only appeal permitted in such circumstances is one based on the allegation that the corrective measures were contrary to the merit principle. Since that reading is consistent with one view of the English text, the common meaning rule requires its adoption. It is also consistent with the only caselaw on the matter.
[10] In Alongi-Peluso et al. v. Canada (Treasury Board) et al.,4 this Court dealt with the application of s. 21(4) to a second appeal. Although the facts of that case are quite different from the facts at bar, and the ratio of that case is not applicable here, the following statement by Rouleau J. regarding subsection 21(4) is apt:
| However, even if s. 21(4) did apply, the Appeal Board had jurisdiction to hear the second appeal based on the ground the corrective measures taken by the Commission following the first appeal and the subsequent removal of the applicants from the eligibility list, contravened the merit principle.5 |
[11] While it could very likely be successfully argued that incomplete or inadequate corrective measures would fall within the contemplation of the subsection, it is, in my view, perfectly clear that only measures taken or failed to be taken pursuant to subsection 21(3), i.e. measures to remedy a defect already identified by an Appeal Board, may be made the subject of a further appeal. To put the matter another way, the focus of subsection 21(3) is the defects and the measures taken to correct them. A further appeal under susbection 21(4) is limited to the impact of those measures on those defects. The three new grounds proposed by the applicants before the third Appeal Board and again here clearly do not meet the test.
[12] As far as the contextual and broader policy arguments are concerned, I think that the applicants have over-stated the case and taken too apocalyptic a view. I do not think that the third Appeal Board's interpretation of subsections 21(3) and 21(4) constitutes any major breach to the merit principle, which remains as important and central to the Public Service Employment Act as it ever was.
[13] The merit principle requires the appointment of the most qualified candidate. Qualifications, however, are not static. Some persons may become more qualified with the acquisition of knowledge and experience. Others may become less so as age or disability reduces their capacities. The "pool" of eligible candidates will, as the expression itself indicates, always be fluid, enlarging and diminishing as the requirements of the Public Service as well as the abilities of employees change over time. But it is clear that the merit principle does not require that every appointment should be kept constantly under review in the light of such changing circumstances. Not only the protection of the rights of incumbents but also requirements of both employer and employees for reasonable stability in the labour force mandate that the imperatives of the merit principle should only come into play periodically and from time to time as appointments, promotions or reductions in force are required. Thus, the question is not whether the merit principle is to be respected but rather at what moment in time the respective merits of the persons concerned are to be assessed.
[14] Looked at in this light, there is nothing very dramatic or drastic about subsections 21(3) and 21(4). They simply direct that when the Commission decides to take corrective measures rather than to go back to the beginning and start a new competition, the relevant time for the assessment of merit of the candidates remains the same. On the second appeal, the corrective measures are assessed for their conformity with the merit principle but all other matters, whether or not they might have been raised on the first appeal, are a closed book. The legislation has made a policy choice to put closure to the appointment process.6
[15] Accordingly, I conclude that the third Appeal Board was correct in its view of the law and did not err in declining jurisdiction over the three stated questions.
[16] At the beginning of these reasons, I mentioned that the applicants had raised another argument which could be rapidly disposed of. That argument deals with an alleged failure of the corrective measures which were in issue on the third appeal to properly assess knowledge of the Income Tax Act7 and related matters. The failure to assess that aspect of knowledge had been particularly dealt with on the first appeal and had been one of the grounds upon which the first appeal was allowed. In the corrective measures taken following the first appeal, that field of knowledge was the subject of direct assessment8. Furthermore, on the second appeal, there was no allegation made by the appellant to the effect that this defect identified on the first appeal had not been corrected and the decision of the second Appeal Board made it plain that there had, in fact, been an assessment of knowledge of the Income Tax Act. As the third Appeal Board found, it was simply not open to the applicants to raise this question on the third appeal.
[17] The application will be dismissed.
"James K. Hugessen"
J.
__________________1 R.S.C. 1985, c. P-33
2 S.C. 1992, c. 54, s. 16, in force June 1, 1993
3 See, e.g., Canada (Attorney General) v. MacKintosh (1991), 126 N.R. 389 (F.C.A.)
4 (1995), 92 F.T.R. 99
5 Ibid.at 103.
6 Another example of such a legislative policy choice may be found in s. 8 of the Public Service Employment Regulations, SOR/93-286, which allows an eligibility list to be valid for up to two years after it was created.
7 R.S.C. 1985 (5th Supp.), c. 1 as amended
8 Application Record, page 101