Date: 20000112
Docket: T-1925-98
BETWEEN:
FRANCE BEAUDRY, YVONNE FRY,
BRENDA STEVENS AND ROSEMARIE PALMIERE
Applicants
- and -
ATTORNEY GENERAL OF CANADA, JAN DANE,
CORINA SMITH, CAROLINE HEALY and SUSAN GUDGEON
Respondents
Reasons for Order
Sharlow J.
[1] The applicants and the individual respondents are employees of the National Energy Board (NEB) working in Calgary, Alberta. In 1998, a number of positions were established in the office of the Executive Director and the Legal Services Branch of the NEB. Those positions were viewed as reclassifications of existing positions then held by the individual respondents. The individual respondents were appointed to those positions without a competition pursuant to subsection 10(2) of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended.
[2] The applicants wish to challenge the appointments on the basis that the positions are not reclassifications, but rather are entirely new positions. If the applicants are correct, the appointments were not authorized by subsection 10(2), and the positions should have been filled by a competition under subsection 10(1).
[3] To challenge the NEB"s determination that the positions were reclassifications, the applicants commenced an appeal under section 21 of the Public Service Employment Act . The Appeal Board Chairperson ruled that he had no jurisdiction to hear the appeal. In this application for judicial review, the applicants argue that the ruling of the Appeal Board Chairperson was wrong. I note that in Habiluk v. Canada (Public Works and Government Services) (1999), 163 F.T.R. 313 (F.C.T.D.), Denault J. concluded that the Appeal Board did not have jurisdiction to hear a similar appeal.
[4] All parties agree that the standard of review on this question of law is correctness. Like Denault J., I have concluded that the Appeal Board Chairperson did not have jurisdiction to hear the applicants" appeals.
[5] The Public Service Employment Act permits appointments to be made by one of two different methods. The two methods are found in subsections 10(1) and 10(2), which read as follows:
| 10(1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service. |
| 10(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons. |
[6] Both methods reflect a specific application of the general principle that every appointment must be based on merit. An appointment made after a competition under subsection 10(1) is based on a comparison of the qualifications of the candidates (the "relative merit principle"). An appointment made without a competition under subsection 10(2) is based on an assessment of the qualifications of an individual (the "individual merit principle"). See Canada (Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.).
[7] The prescribed circumstances referred to in subsection 10(2) are set out in subsection 4(2) of the Public Service Employment Regulations, 1993 (SOR/93-286). For present purposes, it is necessary to consider only Regulation 4(2)(b)(iii), which reads as follows:
| 4(2). A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances, namely, |
| [...] |
| (b) where an employee is to be appointed to the employee"s reclassified position, and |
| [...] |
| (iii) there are no similar occupied positions in the same occupational group and level within the same part of the organization. |
[8] The objective of Regulation 4(2)(b)(iii) is to facilitate the reclassification of positions without jeopardizing the job security of qualified incumbents.
[9] An appointment made following a competition is subject to appeal by any "unsuccessful candidate" (subsection 21(1)). An appointment made under subsection 10(2) is subject to appeal under subsection 21(1.1), which reads as follows:
| 21(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. |
[10] Subsection 21(1.1), read literally, appears to give the right to appeal a subsection 10(2) appointment only to those who meet the criteria established under subsection 13(1) for the process by which that appointment was made. Subsection 13(1) reads as follows:
| 13(1) The Commission may establish, for competitions and other processes of personnel selection, geographic, organizational and occupational criteria that prospective candidates must meet in order to be eligible for appointment. |
[11] In 1996, the NEB developed and adopted an "area of selection" policy which, by agreement with the Public Service Commission, became the subsection 13(1) criteria for the appointments that are challenged in this case. Under that policy, the area of selection for reclassifications was defined as "persons employed in the Branch of the NEB in which the reclassification occurs".
[12] Prior to the challenged appointments, the individual respondents occupied positions in two branches of the NEB, the Office of the Executive Director and the Legal Services Branch. The applicants were not employed in either of those branches. Therefore, the applicants were not within the area of selection established for the reclassified positions.
[13] If subsection 21(1.1) is interpreted literally, the applicants are not within the class of persons who are entitled to appeal the appointments of the individual respondents. On that basis, the respondents argue that the ruling of the Appeals Board Chairperson is correct. If the applicants had no right to appeal under subsection 21(1.1), it would follow that the Appeals Board had no jurisdiction to hear their appeal.
[14] The applicants argue, however, that subsection 21(1.1) should be given a more expansive interpretation. Their argument is based on Attorney General of Canada v. Landriault, [1983] 1 F.C. 636 (F.C.A.), Laidlaw, supra, and a number of other cases.
[15] Landriault dealt with an appeal of an appointment made after a competition pursuant to subsection 10(1). Ms. Landriault had submitted an application but was not permitted to participate in the competition because she was outside the area of selection established under subsection 13(1). It was argued that she was not permitted to appeal under section 21 because, as a person outside the area of selection, she could not be a candidate and therefore could not be an "unsuccessful candidate" within the meaning of subsection 21(1). The Court rejected that argument, saying at page 642 that:
| [...] a person [...] who has applied to participate in a closed competition and whose application has been summarily rejected because he was not within the area of the competition as defined by the Commission pursuant to paragraph 13(b) of the Act may appeal under section 21 in order to contest the legality of the determination made by the Commission pursuant to paragraph 13(b). |
[16] Thus, the Court held that Ms. Landriault"s appeal was within the scope of section 21, and the Appeal Board had the jurisdiction to determine the validity of the determination of the area of selection under paragraph 13(b).
[17] In Laidlaw, the applicant was compelled to compete for a position that the Commission had characterized as new. He was not successful in the competition, and appealed. He argued that the position was not a new position, but a reclassification of the position of which he was the incumbent. The Appeal Board held that the position was in fact a reclassification. The Court held that the Appeal Board had the jurisdiction to make that determination, and that there was no basis for disturbing its conclusion on that point. The Court went on to say that the Commission had previously decided to employ subsection 10(2) to fill all reclassified positions within Mr. Laidlaw"s organization, and that Mr. Laidlaw could not be treated differently from other employees who were similarly situated. For that reason the competition was a nullity and Mr. Laidlaw was entitled to be appointed to his reclassified position under subsection 10(2).
[18] In both of these cases, a person was held to be entitled to appeal an appointment under section 21 to challenge the method of appointment chosen, rather than the appointment itself. In Landriault, the applicant challenged the area of selection determination. In Laidlaw, the applicant challenged the determination that a position was not a reclassification. It is clear that these determinations, as questions of fact or mixed fact and law, were within the jurisdiction of the Appeal Board.
[19] However, before the Appeal Board may exercise that jurisdiction, there must be an appeal properly commenced under either subsection 21(1) or subsection 21(1.1). Both Landriault and Laidlaw involved appeals commenced under subsection 21(1) by someone who had applied to compete in the competition that led to the challenged appointment and was not successful. As "unsuccessful candidates" they were within the class of persons who had been given the right to appeal. In Landriault, which dealt expressly with the question of the applicant"s standing to appeal and the jurisdiction of the Appeal Board to hear the appeal, a conclusion favourable to Ms. Landriault was reached without extending the language of subsection 21(1).
[20] Similarly, the applicants in Attorney General of Canada v. Greaves, [1982] 1 F.C. 806 (F.C.A.) and Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.) required no stretch of statutory language to bring them within the class of permitted appellants under section 21(1).
[21] In this case, the applicants are in essence asking the Court to interpret subsection 21(1.1) in an expansive manner, as though the words "any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1)" were "any person who, at the time of the selection, meets the criteria established or that should have been established pursuant to subsection 13(1)". That is an extension of the statute that I am not prepared to adopt.
[22] I conclude that subsection 21(1.1) did not give the applicants the right to appeal the appointments of the individual respondents. It follows that the Appeal Board Chairperson was correct in finding that he did not have the jurisdiction to hear their appeals.
[23] That is not to say that the applicants are without a means of challenging the area of selection policy or the determination as to whether or not there was in fact a reclassification. It seems to me that either question can properly be the subject of a judicial review. In the course of argument, no counsel suggested that the applicants in this case could not have commenced an application for judicial review on either question, although the time for taking that step has now expired, subject to an extension of time that may be granted by the Court.
[24] I acknowledge that judicial review may not be the best possible method to challenge the validity of the appointment process chosen in this case. The Appeal Board may well be the most appropriate forum for determining whether a position is in fact a new position or a reclassification, or whether an area of selection for a subsection 10(2) appointment has been validly established. However, as I read subsection 21(1.1), Parliament has chosen not to permit those questions to be put to the Appeal Board in the context of subsection 10(2) appointments.
[25] I have not ignored the submissions of counsel for the applicants that the Appeal Board Chairperson misapprehended the nature of the challenge being made by the applicants, and made other errors. I will comment on those points because they were the subject of argument before me, even though in my view, they do not affect the correctness of the Appeal Board Chairperson's conclusion that he lacked the jurisdiction to deal with the appeals.
[26] I agree with counsel for the applicants that the Appeal Board Chairperson erred when he said that (1) the applicants were not challenging the appointments of the selected candidates, (2) a successful challenge would require evidence that there were similar occupied positions in the same occupational group, and (3) no other employees in the NEB could have qualified for these positions. As there was no evidence on the second and third of these points, the Appeal Board Chairperson characterized the appeals as frivolous.
[27] In fact the applicants were challenging the appointments. Although they did not argue that the incumbents were unqualified, they were arguing that the wrong appointment process was chosen because there was in fact no reclassification of the positions. Put another way, the applicants were challenging the applicability of Regulation 4(2)(b)(ii), and thus subsection 10(2) of the Act, on the basis of the opening words of Regulation 4(2)(b) ("where an employee is to be appointed to the employee"s reclassified position") and not, as the Appeal Board Chairperson seems to have thought, on the basis of the conditions in subparagraph (iii) of that Regulation ("there are no similar occupied positions in the same occupational group and level within the same part of the organization").
[28] Further, as the subject of the hearing was limited to the question of jurisdiction, the applicants cannot be faulted for not adducing evidence on the merits, or on the question of whether or not there were other persons who might have qualified for the positions. The Appeal Board Chairperson should not have characterized the appeals as frivolous.
[29] Counsel for the applicants argued that the Appeal Board Chairperson erred in concluding that the collective bargaining agents for the applicants had agreed to the NEB area of selection policy. That was a point submitted by counsel for the employer before the Appeal Board Chairperson, but I see no indication that the Appeal Board Chairperson adopted this submission. He said only that the bargaining agents had been consulted and had not expressed disagreement with it. I do not understand, however, how this evidence can possibly be relevant to the issues before the Appeal Board Chairperson. I was referred to no authority for the proposition that the conduct of a bargaining agent in a labour management consultation committee meeting may limit the right of a person to challenge an area of selection policy in an appeal under section 21.
[30] As indicated above, none of these errors by the Appeal Board Chairperson affect the correctness of his conclusion that he lacked the jurisdiction to hear the applicants" appeals. The application for judicial review will be dismissed with costs.
Karen R. Sharlow
Judge
Ottawa, Ontario
January 12, 2000