Date: 20010105
Docket: T-1445-99
BETWEEN:
ELIZABETH MATHUIK,
Applicant
- and -
THE ATTORNEY GENERAL and MARY URECZKY,
Respondents
REASONS FOR ORDER
MULDOON, J.
1. Introduction
[1] This is an application for judicial review of the decision of Adrian Rys, rendered on July 9, 1999, sitting as the chairperson of an Appeal Board appointed by the Public Service Commission. The decision was in response to an appeal presented by the applicant pursuant to section 21 of the Public Service Employment Act (PSEA).
[2] The applicant alleged that the Department of Human Resources Development Canada (HRDC) had acted contrary to the merit principle by appointing the respondent, Mary Ureczky, to the position of Service Delivery Operations Consultant (PM-3) despite her being ranked below the applicant on an eligibility list.
[3] The appeal board held that the applicant was not an "unsuccessful candidate" under section 21 of the PSEA, because HRDC had offered her a position which she declined at a different location. Therefore, the appeal board held that it was without jurisdiction to consider the applicant's appeal.
2. Facts
[4] Pursuant to a notice of competition issued on November 13, 1998, HRDC conducted a closed competition to fill five vacant positions in its Edmonton offices. One position was available in its Canada Place office, and two were available in each of its South and West Edmonton offices. Although the Canada Place position differed slightly from the other locations, its duties did not require different qualifications. Applicants in the competition were aware that the positions were located in different areas of Edmonton.
[5] By letter dated February 3, 1999, HRDC informed the applicant of the results of the competition. She was provided with a copy of the eligibility list and was advised of a right to appeal pursuant to section 21 of the PSEA. The eligibility list contained the names of eight candidates and their rankings in order of merit. The applicant was ranked sixth on the list and Mary Ureczky was ranked seventh.
[6] Following the creation of the eligibility list, HRDC management people reviewed the experience and backgrounds of the candidates. It was noted that some candidates were better matched for certain specific positions than for others. In particular, the applicant's experience with the board of referees made her a good match for the Canada Place position.
[7] HRDC offered employment to the top five candidates and some of them declined to accept. After the first round of offers, one position at Canada Place and two positions at the Edmonton West office remained vacant. The applicant was the next highest ranking candidate on the eligibility list to whom HRDC could offer these positions.
[8] Shortly after the candidates were advised of the results of the competition, the manager at the Canada Place location asked the applicant if she were interested. The applicant states that she declined the offer and expressed interest in the Edmonton West position. The respondent submits that the applicant stated that she would consider the offer, although she would prefer another office, and that she did not refuse the Canada Place offer at the time. Later, a representative from HRDC informed her that the Canada Place location was the only offer that she would receive. On February 17, 1999, HRDC offered her the Canada Place position. That same day, Mary Ureczky was offered the Edmonton West position. On February 18, 1999, the applicant formally declined the offer. On February 22, 1999, Mary Ureczky formally accepted the Edmonton West position. The applicant was not offered another position.
[9] The respondent states that the following sequence of events led to the offer of a position to Mary Ureczky in the second round of offers:
| 1. The fifth-ranked candidate accepted a position for the West office after having initially accepted a position in the South Office; |
| 2. HRDC then returned the list and offered the vacant South Office position to the second-ranked candidate who was the highest rank remaining of the list at the time. The second -ranked candidate had turned down an offer at the West office in the first round and remained on the list, as was the eighth-ranked candidate; |
| 3. The Canada Place position was then offered and accepted by the eighth-ranked candidate. |
[10] The appeal board held that it did not have the jurisdiction to consider the applicant's appeal because she was not an "unsuccessful candidate" under section 21 of the PSEA. The appeal board noted that HRDC had offered her a position in writing which changed her status from "unsuccessful candidate" to a "person who was about to be appointed." The applicant's refusal did not change her initial success in obtaining a written offer of employment
3. Applicant's Submissions
[11] The applicant submits that this Court should set aside the appeal board's decision because it erred in law by declining to exercise its jurisdiction when it concluded that the extension of an offer of appointment, without acceptance, was sufficient to deny the applicant the benefit of a right of appeal under section 21 of the PSEA.
Standard of Review
[11] The applicant submits that the language of Parliament embodied in section 21 of the PSEA, the lack of a privity clause, and the jurisprudence of this Court support the conclusion that the standard of review of appeal board decisions is correctness on matters of law. (Maslanko, Lo, Boucher, Pushpanathan, Rogerville, PSAC, Petruszkewicz, Perera, Federal Court Act, PSEA)
Merit Principle
[12] Section 21 of the PSEA provides a right of appeal against appointments or proposed appointments in the Federal Public Service arising as a result of a closed competition. Section 21 is designed to ensure that unsuccessful candidates may challenge appointments if the merit principle proclaimed in sub-section 10(1) be violated. The requirements of the merit principle do not vary with the method of selection. The principle requires that the best people be hired for the positions in the public service (Greaves, Charest, PSAC, Bambrough, PSEA)
Substance over form
[13] Courts have cautioned appeal boards from adopting overly rigid or formalistic approaches. The overriding importance of the merit principle and of the right of appeal preclude analysis which emphasizes form over substance. The jurisprudence confirms that an appeal board errs when it adopts an analysis having a prejudicial impact on the merit principle. (Doré, Brault, Peet, Lucas, PSCAB, Hassall, Hofland, Landriault). Therefore, an appeal board must look at the effect of a staffing decision. In Lodba, Mr. Justice Pinard concluded that an appointment of a person whose name appears after that of another willing candidate violates the merit principle. (T-2927-92: February 3, 1994).
Status of Candidates on Eligibility Lists
[14] A comprehensive code exists to give effect to the merit principle in the PSEA and its regulations, the PSER, 1993, whereby procedures exist to select individuals for positions in the public service. The process comprises two phases: the determination of qualified candidates by testing and interviews, and the creation of an eligibility list that ranks the candidates in order of merit. (Sharpe, Vuladka) Once the eligibility list in a closed competition has been established, the Public Service Commission has sole authority to appoint a candidate. The Commission may delegate this authority to HRDC. (PSEA s. 6, s. 8, s. 18, and s. 22).
[15] Section 13 of the PSER, 1993 requires that a candidate be appointed upon having communicated his or her willingness to accept a position. The PSEA recognizes only one situation where a lower ranking candidate may be appointed to a position, under section 18, when it is unclear that the higher ranked candidate meets the conditions of employment. Therefore, a candidate may remain on the list and maintain his or her priority until he or she has accepted the position or has written to indicate an intention not to accept any appointment.
[16] Parliament did not confer on the Commission nor on HRDC the discretion to ignore the rank of a candidate on an eligibility list. The Commission and HRDC must therefore strictly abide by the legislation. This Court has held that the function of an eligibility list is to ensure a right of priority to the most meritorious individuals. This right cannot be discarded or ignored except in accordance with the PSEA or the PSER, 1993. (McCarthy, PSCAB, Ethier).
[17] The Court has also recognized that eligibility lists prevent attempts to circumvent or to ignore the rights of listed candidates. The merit principle obliges the Commission to appoint from an already existing list unless there be some defect in the selection process. (PSCAB)
Appointments
[18] Section 22 of the PSEA states that an appointment will take effect on the date specified in the instrument of appointment. The trigger to the right of appeal under section 21 is when "a person is appointed or about to be appointed." The applicant submits that "a person about to be appointed" in section 21 refers to situations when an instrument of appointment has not yet been issued under section 22.
Case at Bar
[18] The appeal board adopted an interpretation of PSEA section 21 which denies a right of appeal because an offer was extended to a candidate despite it's not having been accepted. This is a triumph of form over substance.(Paragraph 31 of the applicant's application record is poorly worded.) All this runs contrary to judicial authority and the terms of the PSEA and PSER, says paragraph 31 of Vol.II of the applicant's record.
[19] The appeal board reviewed evidence that HRDC intended only to offer the applicant the Canada Place position. Moreover, HRDC tendered evidence that the first five candidates were afforded the opportunity to accept their preferred position. Finally, HRDC asserted that the applicant was not an "unsuccessful candidate" because she had been offered a position. The applicant had a right to appointment in priority status and the appeal board interpreted its jurisdiction in a manner which the legislation does not reasonably bear.
[20] The appeal board failed to consider the merits of the case. In particular, it failed to consider:
| a. that the applicant was ranked higher than Mary Ureczky and was entitled to be appointed before her; |
| b. the applicant's decision to decline the offer for the Canada Place position did not remove her name from the eligibility list or her right to priority appointment. To extinguish such rights, HRDC required her acceptance, or a written refusal to accept any position; |
| c. the applicant communicated her willingness and ability to accept a position at locations other than Canada Place, orally and in writing, before Mary Ureczky accepted the position; |
| d. HRDC allowed other candidates to choose a position according to the candidates' preference. |
The appeal board expressly rejected the applicant's contention that her acceptance of an offer was required to bring her within the class of candidates who were "appointed or about to be appointed" under section 21. This is contrary to the meaning of sections 12 and 13 of the PSER, 1993.
[21] Ample authority exists that the highest ranked candidate on a list stays on the list until such time as she accepts or indicates her unwillingness in writing to accept any appointment. Neither condition applied to this applicant. (Sharpe, McCarthy, PSCAB, Ethier) The applicant submits that the merit principle requires that she be considered an "unsuccessful candidate" in these circumstances.
[22] In Lalancette, the appeal board determined that the applicant was an unsuccessful candidate in similar circumstances. Moreover, the appeal board erred by relying on Patterson. In Patterson, the Court confirmed that a candidate who was not qualified for a position was not a "successful candidate" and was not denied her appeal rights under section 21. The case is distinguishable because it dealt with the testing and interviewing of a candidate, not with selection from an eligibility list.
4. Minister's Submissions
[23] The respondent argues that the appeal board did not err in law and that no basis exists for the intervention of this Court.
Standard of Review
[24] The respondent agrees that the standard of review is correctness.
Definition of Successful Candidate
[25] The competition in which the applicant applied was not for a particular location. She met the criteria and was placed on the eligibility list. She was then offered a position in the second round of offers and refused it. The respondent submits that she was a successful candidate in the competition and does not meet the criteria in section 21.
[26] The Federal Court of Appeal interpreted "unsuccessful candidate" in Patterson. Although the facts of this case are not completely analogous, the respondent submits that the appeal board was correct in referring to Patterson. In Patterson, the Court of Appeal held the applicant was not qualified and therefore it could not be said that she was unsuccessful. (Patterson)
[27] The appeal right in section 21 exists to prevent appointments which are contrary to the merit principle, not to protect the applicant's rights. All eight candidates were qualified and placed on the eligibility list. Therefore, the respondent submits that Mary Ureczky's appointment was made in accordance with the merit principle because she was qualified for the position. Moreover, the merit principle dictates that the best candidate for the position should get the job. In this instance, the applicant was the best suited for the Canada Place position.
[28] The Lodba decision can be distinguished. There, the Court held that the appeal board properly kept jurisdiction because the appellant was still on the eligibility list whilst lower ranking candidates had been appointed. The critical difference is that the appellant in Lodba had not received an offer as the applicant has in this case.
[29] The purpose of section 21 is to challenge the appointment which was made. The applicant never suggested to the appeal board that Mary Ureczky was unsuitable for the position. The evidence demonstrated that management had assessed the candidates' suitability for the particular locations and offered positions accordingly. The appeal board's decision upheld the discretion of management to act as it did.
[30] In Doré, the Supreme Court of Canada held that it is possible for management to assign a person temporarily to new functions without constituting an appointment. The respondent submits that this reasonable flexibility applies to the discretion of management in this case. A lack of discretion will prevent the efficient staffing of positions. Separate competitions will be required for each location, or management will have to await each candidate's acceptance of a position before offering it to the next candidate on the list. The respondent submits that the top ranked candidates are not entitled to their preference.
[31] Finally, the appeal board distinguished Lalancette. The Ministry was aware that the applicant would refuse the second offer before it was made and no evidence existed of management's assessment of suitability for the first location.
5. Order Requested
[32] The applicant requests that this Court allow the application and set aside the appeal board's decision dated July 9, 1999 with an order referring the appeal back to a differently constituted appeal board to be heard on its merits. So be it.
Judge