Date: 20000830
Docket: T-681-99
Between:
MARCEL FOURNIER,
Plaintiff,
-and-
THE ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
| [1] This is an application for judicial review made pursuant to s. 18.1 of the Federal Court Act from a decision by Pierre Baillie, chairperson of the Appeal Board of the Public Service Commission ("the Commission") rendered on March 12, 1999 following an appeal pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (hereinafter "the Act"). |
| [2] The appeal by Marcel Fournier was concerning an appointment after reclassification of their positions (going from level TI-06 to level TI-07) of four district managers of Measures Canada in Quebec, namely Messrs. Watters, Thibault, Martineau and Lauzon (hereinafter "the managers"), the said reclassification of these positions being retroactive to June 19, 1995. |
| [3] The principal issue in the appeal is a point of law, namely the appeal board's jurisdiction to determine whether the merit principle was observed in 1995 and 1996 when the four managers were assigned to their positions. |
FACTS
| [4] In June 1995 Industry Canada undertook an administrative reorganization at the national level of two of the Department's branches, namely Weights and Measures ("W & M") and Electricity and Gas ("E & G"). This reorganization contemplated the creation of four district manager positions in Quebec. |
| [5] Before this merger the W & M branch had four district manager positions in Quebec, all classified at TI-06, and held by Messrs. Thibault, Watters and Lauzon. The E & G branch in Quebec had a similar number: Mr. Martineau held the district manager position for Montréal. |
| [6] After the merger these managers were assigned, on June 19, 1995, to the positions of district manager, Quebec Region, in the new combined division at the same classification level they previously had when they were only managers of W & M or E & G, namely level TI-06. Accordingly, on June 19, 1995 the managers became the incumbents of these positions, apparently without intervention by the Commission to ensure the merit of the appointments, by a competition or by a statement of qualifications. |
| [7] On January 18, 1996 an administrative action was taken by the general manager, Quebec Region, André Lagüe, in the form of new numbering identifying each of the managers as a district manager within the legal metrology branch of Measures Canada. |
| [8] In November 1997, the Department proceeded to reclassify the district manager positions at the national level. A classification committee was set up and the latter filed a report on November 26, 1997 recommending reclassification of the district manager positions created in the 1995 merger at level TI-07. The board wrote the following: |
| At the time of integration MC [Measures Canada] wanted to move fast and minimize further change so the former work descriptions for the DM of W & M [District Managers of Weights & Measures] and the DM of E & G [District Managers of Electricity and Gas] were hurriedly thrown together and submitted for classification as new positions. These did not describe significant change (i.e. did not reflect the full integration and so were classified at the existing TI-06 level). The DMs deployed into them were promised the position would be reviewed within a year. It took somewhat longer but the proposal before the committee today is the result of that process. |
| [9] With the reclassification approved, André Lagüe in February 1998 proceeded to an assessment of the skills of the four district managers who had held their positions since 1995, without a competition but based on a statement of qualifications made pursuant to s. 10(2) of the Act. |
| [10] On February 9, 1998 Mr. Lagüe, the sole member of the selection board, certified that the four managers all met the requirements of the statement of qualifications, a position classification action file having been certified on January 22, 1998 for each of the managers. |
| [11] On February 9, 1998 the Department posted a right of appeal following the appointments of the four managers to their reclassified positions. On February 20, 1998 Mr. Fournier, the plaintiff herein, appealed the appointments (selection process 1998 - DUS-MTL-WC-05) as authorized by s. 21 of the Act. |
| [12] Mr. Fournier filed his written allegations with the appeal board. He alleged that new positions were created in June 1995 and the four managers became the incumbents thereof regardless of the merit principle. I set out Mr. Fournier's allegations relating to this point: |
| [TRANSLATION] |
| 35. The result of the administrative reorganization is that each of the successful candidates will be responsible for an activity that differs from the one for which they were assessed. |
| 36. The activities in question are: |
| (i) the Weights and Measures department. |
| (ii) the Electricity and Gas department. |
| 37. The career path is different for each activity. |
| 38. The training is different for each activity. |
| 39. The work for each activity is different. |
| 40. Each of the activities has a separate clientele. |
| 41. The work tools, working instruments and work methods are different. |
| 42. The statement of qualifications is different for a manager at the first level in the Weights and Measures department from that of a manager at the first level in the Electricity and Gas department. |
| 43. The career path plan for each activity is different. |
| 44. Before June 1995 the successful candidates were level one managers in one of the activities only. |
| 45. The successful candidates have no experience of work in both activities. |
| 46. The successful candidates never participated in a competition for the combined position of district manager of "Weights and Measures" and "Electricity and Gas". |
| [13] The Department replied to Mr. Fournier's written allegations and indicated the following, at p. 188 of the record: |
| [TRANSLATION] |
| Following the merger of the activities, a review of the duties of district manager TI-06 was undertaken. These were not new positions, but were administrative measures required to reflect the new job description. In this connection, I enclose letters indicating that the numbering of positions was changed but they were still the substantive positions of the incumbents, namely Messrs. Lauzon, Martineau, Thibault and Watters. |
| [14] In reply to Mr. Fournier's allegation No. 46, the Department responded: |
| [TRANSLATION] |
| In answer to allegation 46, we confirm that there was no competition since the candidates were the incumbents of these positions. |
| [15] In conclusion, the Department said it had established [TRANSLATION] "[T]hat Messrs. Lauzon, Martineau, Thibault and Watters were the incumbents of the positions at June 19, 1995". |
APPEAL BOARD DECISION
Question and preliminary objections
| [16] I note that in the appeal process teleconferencing calls were held on April 27 and May 28, 1998 and that following those calls the plaintiff made a preliminary objection, essentially challenging Mr. Baillie's right to the position of chairperson of the appeal board, basically because he demonstrated bias in the said calls. As the plaintiff withdrew this point in this Court, I see no need to deal with it. |
| [17] Additionally, the plaintiff also made a preliminary objection challenging the interpretation of the very subject-matter of the appeal by the chairperson of the appeal board. The chairperson categorically refused to deal with the question of the appointments made in June 1995 following the administrative reorganization, on the ground that despite the fact that no right of appeal was posted at that time and it was subsequently admitted that these were in fact new positions, those appointments were made with the knowledge of all concerned and no complaints were filed. Accordingly, he concluded that it was now too late to raise this question and accepted the following explanations, given by the defendant, of the reasons justifying the appointments made in 1995: |
| [TRANSLATION] |
| Based on the Department's explanations and all the circumstances of the instant case, it is reasonable for the Department to choose the route of appointment without competition under 10(2) of the Act. It was admitted that the positions of district manager have been new positions since June 1995. The fact that these positions were reclassified from TI-06 to TI-07 does not substantially alter their characteristics. According to the manager's explanations, the incumbents of these positions continue and will continue to be responsible for the same activities, as the positions require the same qualifications. The Department therefore did not have to hold a closed competition to fill these positions. |
Merits of case
| [18] As to the questions making up the substance of the appeal at bar, it appears that the plaintiff raised two important arguments, namely (1) the fact that candidates who received proposed appointments did not have the necessary experience in inspection and testing of a variety of measurement and control instruments as part of the inspection program of Measures Canada, as required by the statement of qualifications, and (2) the fact that this reclassification of the candidates resulted directly from an alteration of their job descriptions which was made when the administrative reorganization took place in June 1995, and already at that time the candidates who were assigned to the new district manager positions did not meet the required standards. |
| [19] The appeal board again refused to deal with the creation of the new positions in June 1995 and simply determined whether the candidates who received proposed appointments for the reclassification of their positions met the requirements set by the Commission itself, as authorized by s. 10(2) of the Act. For greater clarity I set out below the few paragraphs which constitute the gist of the decision: |
| [TRANSLATION] |
| In the instant case the Department has clearly demonstrated that the candidates Waters, Martineau and Thibault had the experience required, or which may have been required, under the new description of the "experience" factor. However, it did not establish that the candidate Lauzon had the desired experience, based on the statement of qualifications prepared for purposes of this selection. I must therefore allow the appeal against the proposed appointment of Mr. Lauzon for this reason. However, I would recommend that the Commission review the situation and authorize the manager to prepare a new statement of qualifications for Mr. Lauzon's position, ordering him to reassess this candidate. The Commission may well conclude that the experience factor as described at level TI-06 was suitable, as this experience was described in this way in 1997. It was established that the duties of the positions to be filled have not altered since that time. |
| Having said that, I found no other reason to allow the appeal. In fact, I consider that the appellant has not shown that the appointments of Messrs. Watters, Martineau and Thibault following the reclassification of their positions contravened the merit principle. The manager was able to explain to my satisfaction that he was familiar with the work done by these individuals for several years and had found that these candidates had all the desired qualifications. As for the appellant, he did not establish that he had a right of appeal from the appointments to the new positions created in June 1995. Clearly, he knew that new duties had been added to the duties of district manager positions and did not object at the proper time. |
| As regards a right of appeal which the appellant claims against appointments that were made in 1996, I consider that the fact that new numbers were assigned to those positions is not evidence that new appointments were made. In fact, after a reorganization or any other administrative exigency, the numbers of positions in an entire organization may be changed. This does not have the result of changing the nature of the organization's positions and in no way demonstrates that new positions were created. The incumbent of a position for which only the number changes does not lose his attachment to that position. This is not an appointment and the right of appeal pursuant to s. 21 of the Act cannot be exercised in such a case. |
| [My emphasis.] |
| [20] Various arguments were made by the plaintiff when the application for judicial review at bar was filed, arguments which I will consider in the paragraphs that follow. |
ANALYSIS
| [21] After analysing the record overall and hearing the parties, I consider that only one point must be examined to determine whether an error was made by the Appeal Board that would justify intervention by this Court: |
| [TRANSLATION] |
| Whether the Appeal Board had committed a reviewable error by refusing to consider, in its analysis, the proposed appointments made in February 1998 following a reclassification of the positions in question, the nature of the positions created at the time of the administrative reorganization in June 1995, and how the managers became incumbents of those positions? |
| [22] The standard of review applicable in such circumstances is set out in s. 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads as follows: |
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
| [23] The judicial review sought by the plaintiff essentially raises a point of law regarding the requirements in applying the merit principle. In such a case, the applicable standard of review is that of the correct decision: see as to this Boucher v. Canada (A.G.), [2000] F.C.J. No. 86 (F.C.A.). |
| [24] Section 10 of the Act notes that any appointments to the Public Service shall be based on selection according to merit: |
| 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. (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. |
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique. (2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats. |
| [25] The defendant submitted that the proposed appointments were made pursuant to s. 10(2) of the Act, which authorizes the making of a selection according to merit as measured by such standard of competence or statement of qualifications as the Commission may establish and pursuant to s. 4(2)(b)(ii) of the Public Service Employment Regulations, SOR/93-286, 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, (a) where an employee is to be promoted within an apprenticeship or occupational training program; (b) where an employee is to be appointed to the employee's reclassified position and (i) the position has been reclassified as a result of a classification audit or grievance, (ii) the position is one of a group of similar occupied positions of the same occupational group and level in the same part of an organization that have all been reclassified to the same occupational group and level, or (iii) there are no other similar occupied positions in the same occupational group and level within the same part of the organization . . . |
| 4(2) La sélection visée au paragraphe 10(2) de la Loi peut se faire dans l'une ou l'autre des circonstances suivantes : a) la promotion d'un fonctionnaire dans le cadre d'un programme d'apprentissage ou de formation professionnelle; b) la nomination d'un fonctionnaire à son poste après reclassification lorsque, selon le cas : (i) la reclassification résulte d'une vérification ou d'un grief en matière de classification, (ii) le poste fait partie d'un groupe de postes occupés semblables, des mêmes groupe et niveau professionnels, au sein du même secteur de l'organisation qui ont tous été reclassés aux mêmes groupe et niveau professionnels, (iii) il n'y a aucun autre poste occupé semblable, des mêmes groupe et niveau professionnels, au sein du même secteur de l'organisation . . . |
| [26] The right of appeal from such appointments is set out in s. 21 of the Act: |
| 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, (a) if the appointment has been made, confirm or revoke the appointment; or (b) if the appointment has not been made, make or not make the appointment. (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_:
a) si la nomination a eu lieu, la confirmer ou la révoquer; b) si la nomination n'a pas eu lieu, y procéder ou non. (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. |
| [27] Recently, in Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101, the Federal Court of Appeal considered the jurisdiction of an appeal board in circumstances in which an appointment was made without competition but in accordance with the standards of competence laid down by the Commission. Per Sharlow J.A., the Federal Court of Appeal made the following comments on s. 10 of the Act and the related right of appeal: |
| [3] It has long been recognized that "selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged" (per Le Dain J. in Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (C.A.) at 115). This is the most quoted formulation of what has come to be called the "merit principle". |
| [4] Subsection 10(2) was enacted in 1993 (S.C. 1992, c. 54, s. 10) concurrently with a number of other amendments to the Public Service Employment Act. Jurisprudence relating to pre-1993 appointments often contains general statements made in the context of an appointment after a competition. Care must be taken in applying those cases to appointments made under subsection 10(2), because of the change in context. Even so, this Court has said that the 1993 amendments to the Public Service Employment Act did not alter the merit principle. An appointment under subsection 10(2) represents an alternative application of the merit principle, not an exception to it. In Canada (Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.), the merit principle underlying the process of selection permitted by subsection 10(2) was described as the "individual merit principle", as opposed to the "comparative merit principle" underlying appointments made after competitions held pursuant to subsection 10(1). |
| [5] Section 21 of the Public Service Employment Act provides for appeals against appointments. The objective of section 21 is to ensure that the principle of selection by merit is observed: Charest v. Canada (Attorney General), [1973] F.C. 1217 (C.A.). Although that principle was first stated in the context of an appeal to [sic] an appointment made after a competition, it is applicable to all appeals under section 21. |
| [28] In conclusion, the Federal Court of Appeal held that the appeal board had the power to observe whether the application of standards of competence laid down by the Commission was done in accordance with the merit principle: |
| [23] The problem, however, is that the Appeal Board perceived a limitation to its jurisdiction that precluded it from even considering the possibility that the selection standards were inconsistently applied. It is conceded by counsel for the Attorney General that in a selection process of the kind undertaken here, a failure to apply the standards consistently would offend the merit principle. Thus the Appeal Board failed to discharge its mandate, which is to guard the integrity of the application of the merit principle. While it has been said that an appellant cannot claim more than the integrity of the application of the merit principle, it is equally true that an appellant should not be obliged to settle for less. [My emphasis.] |
| [29] This judgment of the Federal Court of Appeal is very important since it refers to the appeal board's primary function, of ensuring that appointments were made on the merit principle, has in fact been carried out. Additionally, it also appears from this case that the Appeal Board has broad jurisdiction in considering whether the merit principle has been observed, in order to guard the integrity of the latter. |
| [30] That case also cites another very important judgment of the Federal Court of Appeal, Laidlaw et al. v. Canada (Attorney General) (1998), 237 N.R. 1, in which Décary J.A. noted the importance in applying the merit principle properly of taking into consideration the nature of the positions in question, that is, whether they are new positions or not: |
| In the case at bar, the evidence is to the effect that the Commission, assuming it had the right to choose between the s. 10(1) or the s. 10(2) process, had decided to proceed under s. 10(2) whenever the jobs reclassified were not new jobs. The appellants did not benefit from that process solely because, in the view of Revenue Canada, their jobs were new jobs. Once it is determined by the appeal board - and that finding was confirmed by the motions judge - that the jobs were not new jobs, the premise under which the Commission excluded the appellants from that process proved to be wrong and their exclusion could no longer be justified for it was based on an erroneous consideration. Furthermore, the Commission should not be allowed, once it has chosen to proceed under s. 4(2), to treat differently employees whose situation is similar. In these circumstances, there is no need to refer the matter back to the appeal board for it has already reached the right conclusion and could do nothing more than reach the same conclusion but on other grounds. |
| Counsel for the respondent argued that the appeal board had no authority to determine whether the positions at issue were new positions. The respondent had argued the opposite before the appeal board. She was right then and she is wrong now. It is trite law, since the decisions of the Supreme Court of Canada in Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; 81 N.R. 61, and Doré v. Canada, [1987] 2 S.C.R. 503; 81 N.R. 77, that in order to determine whether the merit principle has been properly applied - and the individual merit principle is as much the merit principle as the relative merit principle - an appeal board must consider "what [a] department has objectively done as a matter of fact and not what it may have intended or understood it was doing as a matter of law . . ." (Doré, supra, at 510 [S.C.R.], Le Dain J.) |
| [My emphasis.] |
| [31] I see that the appeal board refused to apply the principles set out by the Federal Court of Appeal in Laidlaw, supra, on the ground that the facts of that case were not the same as those in the case at bar. I note that in the facts of Laidlaw there was also a question of appointments made pursuant to s. 10(2) of the Act and s. 4(2)(b)(ii) of the Regulations, as in the case at bar. |
| [32] In accordance with Laidlaw, supra, I feel it is essential to the application of the merit principle to ensure that the appointments made initially, before the positions in question were the subject of a reclassification under s. 4(2) of the Regulations, were made in accordance with the requirements laid down in s. 10 of the Act, that is as the result of a competition or the application of a statement of qualifications. |
| [33] In Doré v. Canada, [1987] 2 S.C.R. 503, the Supreme Court of Canada per Le Dain J. noted that no one who was improperly appointed to a position in the federal Public Service could benefit from this undue advantage in a subsequent selection process: |
| The ultimate issue in the appeal is whether the assignment of the mis en cause on a temporary basis to the position of supervisor of the reception and inquiries section, pending the classification of the position, was an appointment to the position within the meaning of s. 21 of the Public Service Employment Act. On this issue, I am of the view that while it must be possible for the administration to assign a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal, that reasonable flexibility should no longer be available where, as in the present case, the assignment is permitted to become one of such significant and indefinite duration as may be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process. In my opinion the assignment of the mis en cause to the position of supervisor of the reception and inquiries section on a full-time basis for some nine months had acquired that character when the appellant's appeal was heard by the appeal board in November, 1984. I am, therefore, of the opinion that there was an appointment of the mise en cause to a position within the meaning of s. 21 of the Public Service Employment Act and that since, on the admission of the Department, the appointment was not based on selection according to merit, as required by s. 10 of the Act, the appeal board properly revoked the appointment. |
| [34] Based on the foregoing, it is a straightforward matter to conclude that no federal organization can circumvent the requirement to ensure that the merit principle is applied, by appointing a public servant after reclassification of his or her position as provided by subsection 4(2) of the Regulations, where the public servant was irregularly appointed to the position that was reclassified. |
| [35] In the case at bar, I do not think that the fact that three years elapsed between the unofficial appointments to these newly established positions and the proposed appointments following a reclassification of these new positions is a sufficient reason to prevent the appeal board from assessing the nature of the desired positions in 1995 and how the managers became incumbents of those positions, especially since it is scandalous that no right of appeal was posted at the time to enable other potential applicants to object to these apparently illegal appointments. |
| [36] These comments are all the more relevant since in the case at bar Industry Canada formally acknowledged, after its previous categorical denial, that new positions had indeed been created at the time of the 1995 administrative reorganization. |
| [37] As pointed out by the Federal Court of Appeal in Buttar , supra, the primary mandate of the appeal board is to ensure compliance with the merit principle. In the case at bar I find without hesitation that in light of Laidlaw, supra, it was essential, for proper assessment of the appointments, to go back to the actual creation of those positions, since their creation and reclassification were integral parts of the same process, and to verify whether the appointments made at that time complied with the merit principle. This premise is also supported by the fact that the respondent itself acknowledged that these were indeed new positions and that their reclassification did not substantially change their characteristics, and that the reclassification was retroactive to June 1995. |
CONCLUSION
| [38] In the circumstances, I conclude that the appeal board made a reviewable error in that it failed to exercise its jurisdiction in assessing the candidacies for the desired positions by refusing to take into account the actual nature of the new positions crated in June 1995 and to consider how the managers became their incumbents. The appeal board's decision is accordingly quashed and the matter referred back to an appeal board of different members for reconsideration in accordance with these reasons. |
| [39] I award costs to the plaintiff. |
François Lemieux
J U D G E
OTTAWA, ONTARIO
August 30, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000830
Docket: T-681-99
Ottawa, Ontario, August 30, 2000
Before:: Lemieux J.
Between:
MARCEL FOURNIER,
Plaintiff,
-and-
THE ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER
For the reasons cited above, I conclude that the appeal board made a reviewable error in that it failed to exercise its jurisdiction in assessing the candidacies for the desired positions by refusing to take into account the actual nature of the new positions crated in June 1995 and to consider how the managers became their incumbents. The appeal board's decision is accordingly quashed and the matter referred back to an appeal board of different members for reconsideration in accordance with these reasons.
| I award costs to the plaintiff. |
| François Lemieux JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-681-99
| STYLE OF CAUSE: Marcel Fournier v. Attorney General of Canada |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 31, 2000
REASONS FOR ORDER BY: Lemieux J.
DATED: August 30, 2000
APPEARANCES:
Marcel Fournier THE PLAINTIFF FOR HIMSELF
Claude Morissette FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario