Date: 20041221
Docket: T-2121-03
Citation: 2004 FC 1762
Ottawa, Ontario, the 21st day of December 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ISABELLE D'AUTEUIL
Applicant
and
ATTORNEY GENERAL OF CANADA and
MARIE-CLAUDE MARQUIS
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by the Public Service of Canada Appeal Board (the Appeal Board) dated October 14, 2004, dismissing the applicant's appeal, brought pursuant to section 21 of the Public Service Employment Act (the Act), challenging the indeterminate appointment of Marie-Claude Marquis (Ms. Marquis) without competition to a fisheries sciences data administration technician position. Isabelle D'Auteuil (Ms. D'Auteuil or the applicant) is seeking an order setting aside the Appeal Board's decision and referring the matter back to the Public Service Commission Selection Committee for reconsideration and redetermination in accordance with the provisions of the Act, as well as her legal expenses and any other remedies the Court considers appropriate.
ISSUE
[2] Did the Appeal Board make an error of law or fact, or otherwise act in a perverse or capricious manner or contrary to the rules of natural justice or procedural fairness, in concluding that the appointment of Ms. Marquis was made in due form and consistent with the requirements of the merit principle?
CONCLUSION
[3] For the reasons given below, I answer this question in the negative.
FACTS
[4] In October 2001, the Department of Fisheries and Oceans (the Department) opened an internal competition to create an eligibility list to fill indeterminate positions of fisheries sciences data administration technicians (SI-02). The applicant and Ms. Marquis participated in the competition. On March 20, 2002, an eligibility list was drawn up, valid until March 19, 2004, consisting of six names. On that eligibility list Ms. D'Auteuil was placed third and Ms. Marquis fifth.
[5] On May 5, 2003, the first candidate on the eligibility list had obtained employment in a competition and the second candidate obtained an appointment at a higher rate of pay than her former employement; however, their names remained on the list. Ms. D'Auteuil held a term appointment ending on June 30, 2003, and the fourth candidate held a term appointment ending on September 30, 2003. Ms. Marquis had been unemployed since March 31, 2003.
[6] On May 9, 2003, the Department offered Ms. Marquis a term appointment to a position of data administration technician (SI-02 - the term position) for 33 days, from May 5 to June 6, 2003, inclusive. Ms. Marquis accepted that position.
[7] On June 1, 2003, the Term Employment Policy (the Employment Policy) came into effect, requiring the Department to appoint indeterminately at the level of his or her substantive position any person employed in the same Department as a term employee for a cumulative working period of three years without a break in service longer than 60 consecutive days.
[8] On June 25, 2003, pursuant to the new Employment Policy, the Department offered Ms. Marquis, who at the time had more than three consecutive years of employment in the Department, an indeterminate appointment on a seasonal basis without competition to a position of fisheries sciences data administration technician (SI-02). That appointment came into effect on June 1, 2003 (the SI-02 technician position) and was accepted by Ms. Marquis. A notice of this appointment and the corresponding right of appeal was issued on June 23, 2003, and the appellant appealed on July 3.
IMPUGNED DECISION
[9] The Appeal Board dismissed the applicant's appeal since it concluded that she had not shown that Ms. Marquis' appointment, dated June 1, 2003, was made improperly or contrary to the requirements of the merit principle. At that stage, the appellant could not object that she should have been appointed to the term position offered to Ms. Marquis, since it was not that appointment which was appealed but the subsequent appointment to the indeterminate position.
[10] Despite that decision, the Appeal Board nevertheless considered the second appointment to the SI-02 technician position and the first appointment to the term position, but concluded that the merit principle had been respected. According to the Appeal Board, only Ms. Marquis was in a position to accept the term position because at the time the other two candidates had positions of longer duration. Additionally, the appointment to the SI-02 technician position was given to Ms. Marquis as a consequence of the obligation on the Department resulting from the Employment Policy.
LEGISLATION
Public Service Employment Act, R.S.C. 1985, c. P-33:
| 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. |
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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. |
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| (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. |
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(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. |
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| 18.(1) An appointment under this Act made to a position by competition shall be made from an eligibility list in accordance with the regulations of the Commission. |
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18.(1) Les nominations à des postes pourvus par voie de concours sont effectuées d'après la liste d'admissibilité conformément aux règlements de la Commission. |
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Public Service Employment Regulations(2000), SOR/2000-80 (the Regulations):
| 1. The definitions in this subsection apply in these Regulations. |
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1. Les définitions qui suivent s'appliquent au présent règlement. |
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| "substantive level", in respect of an employee, means the occupational group and level (a) at which the employee is being paid; or
(b) where the employee has received an acting appointment, at which the employee was being paid immediately before receiving the appointment. |
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« niveau de titularisation » À l'égard d'un fonctionnaire, le groupe et le niveau professionnels en fonction desquels, selon le cas :
a) il touche son traitement;
b) il touchait son traitement au moment d'être nommé par intérim à un poste. |
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| 5.(2) A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances: |
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5.(2) La sélection au mérite visée au paragraphe 10(2) de la Loi peut se faire dans l'une ou l'autre des circonstances suivantes : |
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| (c) the appointment for an indeterminate period, to a position at the same substantive level or to an equivalent occupational group and level in an organization, of an employee who is appointed for a specified period and who has accumulated in the organization at least three years of service without a break in service of more than 60 consecutive days under the criteria set out in the Term Employment Policy established by the Treasury Board and dated December 12, 2002, if the policy applies to the organization . . . |
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c) la nomination pour une période indéterminée, à un poste au même niveau de titularisation ou à un groupe et niveau professionnels équivalents au sein d'une organisation, d'un fonctionnaire nommé pour une période déterminée qui compte au moins trois années de service au sein de l'organisation sans interruption de plus de soixante jours consécutifs selon les critères énoncés dans la Politique sur l'emploi pour une période déterminée du Conseil du Trésor en date du 12 décembre 2002, si cette politique s'applique à l'organisation . . . |
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| 15.(1) If an eligibility list has been established for a position, an appointment to the position must be made according to the list, unless it has been exhausted or has expired, before an appointment shall be made as a result of any other process of personnel selection. |
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15.(1) Si une liste d'admissibilité a été établie pour un poste, toute nomination à ce poste doit être faite d'après cette liste à moins que celle-ci soit épuisée ou expirée, avant qu'une nomination soit faite selon un autre mode de sélection. |
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| (2) If an appointment is to be made from an eligibility list, including an acting appointment, the candidate ranking highest on the list who meets the conditions of employment referred to in subsection 17(1.1) of the Act and who is willing and available to accept the appointment shall be appointed to the position. |
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(2) Si une nomination ou une nomination intérimaire est faite d'après une liste d'admissibilité, le candidat nommé est celui qui occupe le rang le plus élevé sur la liste, qui remplit les conditions d'emploi visées au paragraphe 17(1.1) de la Loi et qui souhaite accepter la nomination et est en mesure de le faire. |
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| 17.(3) If an acting appointment or an appointment for a specified period is made from an eligibility list established to make indeterminate appointments, the name of the appointed candidate shall remain on the eligibility list and the candidate shall remain eligible for future indeterminate appointments made from that list. |
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17.(3) En cas de nomination intérimaire ou pour une période déterminée faite d'après une liste d'admissibilité établie en vue de nominations pour une période indéterminée, le nom du candidat nommé est conservé sur la liste et celui-ci demeure admissible aux nominations pour une période indéterminée qui seront faites d'après la liste. |
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Term Employment Policy (December 12, 2000), Treasury Board:
| 7. Policy Requirements 1. Subject to section 7.2, where a person who has been employed in the same department/agency as a term employee for a cumulative working period of three (3) years without a break in service longer than sixty (60) consecutive calendar days, the department/agency must appoint the employee indeterminately at the level of his/her substantive position. This appointment must be made in accordance with merit as provided for in the Public Service Employment Regulations established by the Public Service Commission.
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7. Exigences de la politique 1. En vertu du paragraphe 7.2, lorsqu'une personne travaille dans le même ministère ou organisme en tant qu'employé nommé pour une période déterminée pendant une période cumulative de trois (3) années sans interruption de service de plus de soixante (60) jours civils consécutifs, le ministère ou organisme doit nommer cet employé dans un poste de durée indéterminée d'un niveau égal à celui de son poste d'attache. Cette nomination doit être effectuée selon le principe du mérite comme prévu dans le Règlement sur l'emploi dans la fonction publique, établi par la Commission de la fonction publique. |
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PARTIES' ARGUMENTS
Applicant
[11] The applicant submitted that the Appeal Board erred in its analysis of the application of the merit principle in the case at bar. In the applicant's submission, to understand how the Department completely ignored this principle one must look not only at the appointment of Ms. Marquis to the SI-02 technician position on June 1, 2003, but also the first appointment of Ms. Marquis to the term position on May 9, 2003. Selection according to the merit principle is the primary aim of the Act and the essential criterion for assessing the exercise of powers conferred by the Act: Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101, at paragraph 3 (F.C.A.); Bambrough v. Public Service Commission, [1976] 2 F.C. 109, at paragraph 10 (F.C.A.).
[12] The applicant relied on the Federal Court of Appeal judgment in Greaves v. Attorney General of Canada, [1982] 1 F.C. 806, at paragraph 5 (F.C.A.), to argue that the merit principle does not require the selection of a person qualified for the position, but rather the person best qualified for the position. In the applicant's submission, she was better qualified for the SI-02 technician position than Ms. Marquis.
[13] The applicant maintained that use of the Employment Policy was only a means of concealing the fact that Ms. Marquis' first appointment to the term position infringed the merit principle. But for the fact that she had been improperly appointed to the term position (because the other candidates were not contacted), she would not have accumulated three consecutive years of service so as to qualify for the SI-02 technician position under the Employment Policy.
[14] Finally, the applicant argued that the Appeal Board should not have accepted the Department's explanation regarding why the Department had not contacted the other candidates whose names appeared on the eligibility list before Ms. Marquis. The Department submitted no evidence that the first four persons on the eligibility list had been contacted, and even admitted that those persons had not been contacted at all. Further, the Department submitted no evidence that, if the four persons had been contacted, they had refused the appointment: the reason given by the Department for explaining why it did not contact them.
Respondents
[15] The respondent Attorney General of Canada considered that the Appeal Board was right in finding that Ms. Marquis' first appointment to the term position did not infringe the merit principle. Alternatively, the respondent argued that only Ms. Marquis could have been appointed to the SI-02 technician position, because this appointment was made pursuant to the Employment Policy and she had worked for the same Department for over three years in a term position. Consequently, the respondent asked that the application for judicial review be dismissed.
[16] The respondent argued that the Appeal Board's conclusion, namely that the candidates holding positions of longer duration than the position to be filled would not have been interested in offers of a position with a shorter time period, reflects the actual situation that prevails in Public Service staffing. Further, the respondent submitted that this conclusion is consistent with the wording of the Act since, if Parliament had wanted every candidate to be contacted regardless of his or her situation, it would not have added the words "available to accept the appointment" to subsection 15(2) of the Regulations.
[17] Finally, the respondent maintained that the applicant's argument, to the effect that the days worked by Ms. Marquis in accordance with her term appointment did not give her any right under the Employment Policy, is contrary to the Federal Court of Appeal's judgment in Murray v. Canada (Public Service Commission), [1987] F.C.J. No. 473, at para. 3 (F.C.A.). In that judgment, Mahoney J.A. held that an appointment contrary to the merit principle was not absolutely vitiated. Consequently, the respondent argued that Ms. Marquis could have the benefit of the missing 15 days of work (to have a total period of over three years' continuous work, as prescribed by the Employment Policy), and in view of the purpose of the Employment Policy it would be unfair to deny her the benefit of those 15 days.
[18] The respondent asked that the application for judicial review be dismissed with costs.
[19] Ms. Marquis filed no memorandum.
ANALYSIS
Standard of review
[20] In the applicant's opinion the applicable standard of judicial review is that of correctness, since the appeal raises a point of law as to application of the merit principle: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86, at paragraph 7 (F.C.A.); Fournier v. Canada (Attorney General), [2000] F.C.J. No. 1394, at paragraph 23 (T.D.); and Buttar, supra, at paragraph 17.
[21] For his part, the respondent indicated that the applicable standard of review was that of patent unreasonableness decision, since the point at issue is whether the Appeal Board had correctly interpreted subsection 15(2) of the Regulations, set out above, which provides that appointments made from an eligibility list must be of the candidate "ranking highest on the list who meets the conditions of employment referred to in subsection 17(1.1) of the Act and who is willing and available to accept the appointment". The respondent considered that determining whether a candidate "is . . . available" to accept an appointment is a question of fact which is within the Appeal Board's area of expertise, namely staffing. The Court should therefore demonstrate the greatest deference: Boucher v. Canada, [1998] F.C.J. No. 1557, at paragraph 7 (affirmed by the Federal Court of Appeal, supra).
[22] It seems to me that this question is actually a mixed question of law and fact. The question of whether it was reasonable not to contact the other candidates requires consideration of the circumstances for each candidate and is therefore a question of fact, while the determination of whether the procedure used infringed the merit principle is a question of law. In general, the standard of review on a question of law and fact is that of reasonableness simpliciter: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at pages 256 et seq.
[23] Further, in accordance with the pragmatic and functional approach set out by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the application of the standard of review of the reasonable decision simpliciter appears to be the more appropriate. First, there is no privative clause in the Act. Second, the Appeal Board is an expert regarding questions involving the appointment process, including whether a candidate "is willing and available to accept the appointment". That is not a question of law but one of fact, involving the individual characteristics of the candidates on an eligibility list. Third, the Act is polycentric in that it seeks to resolve questions involving employment in the Public Service. Finally, the question requires consideration of the circumstances in which the appointment was awarded to Ms. Marquis, and not to the other candidates. Such analysis requires applying a legal standard to a group of facts: in the circumstances, was it reasonable and consistent with the merit principle for Ms. Marquis to be appointed to the term position, rather than one of the other candidates? That is a mixed question of fact and law. In order to answer that question, the Court must look at the tribunal's reasons to determine whether they contain a line of analysis that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
Analysis of Appeal Board's decision
[24] The Appeal Board concluded that it was not wrong, improper or illegal for the Department to appoint Ms. Marquis to a level SI-02 indeterminate position, since she held a position at that level on June 1, 2003. Further, the Appeal Board concluded that even if the term position had been offered to Ms. D'Auteuil, she would not automatically have obtained the SI-02 technician position offered to Ms. Marquis, since that offer resulted from the application of the Employment Policy. There is no reason for intervening in these findings by the Appeal Board. The offer of such an indeterminate position would not have been automatically made to Ms. D'Auteuil, since she did not have the three years' continuous service with the Department. It is possible that such an indeterminate position could have been offered to Ms. D'Auteuil without the Employment Policy being applicable, but there is no evidence to indicate that was the case. That question is moot.
[25] It seems reasonable for the Appeal Board to have accepted the Department's explanation as to why the other candidates on the eligibility list were not contacted on May 9, 2003, regarding the term position. It is highly likely that they would not have accepted employment for a more limited time than what they already held. Only Ms. Marquis was unemployed at that time. That does not infringe the merit principle. Further, as it was a term position, not an indeterminate one, it is possible to argue that the Department had no obligation to offer the term position to candidates on the eligibility list, such as Ms. Marquis. The eligibility list was drawn up to fill an indeterminate fisheries sciences data administration technician position (SI-02), not term positions. Overall, the Department's decision is reasonable in the circumstances, and for the foregoing reasons there is no basis for intervening in the decision made by the Appeal Board that the merit principle was observed in Ms. Marquis' appointment process.
OTHER COMMENTS
[26] It is very important for the merit principle to be observed in any competition or appointment. That principle is fundamental to the system of staffing in the Public Service. The necessary steps must be taken to ensure that it is observed in competitions and staffing processes.
[27] In the case at bar, the evidence was that the other candidates would not have been interested in accepting the 33-day term position, because it was for a shorter time than the positions they already held. Also, there was no evidence that one of the candidates would have accepted the SI-02 technician position if the offer had been made. The Appeal Board decided that in the circumstances it was reasonable for the Department to have contacted only Ms. Marquis. However, the Department should not proceed regularly in this way. The appointment processes were established to ensure that every candidate has a fair chance of success based on his or her qualifications. The Department has a duty to ensure that the merit principle, the most important principle in this process, is observed. In the case at bar, Ms. Marquis was qualified for the SI-02 technician position and in the circumstances it was excusable that the Department did not contact the other candidates.
[28] Alternatively, and finally, I would note that at the time that Ms. Marquis accepted the SI-02 technician position Ms. D'Auteuil did not have the three years required to obtain the position. Further, there is no evidence to support the argument that Ms. Marquis was appointed to the term position so she could be appointed to the technician position.
[29] In view of the conclusions of this judgment, costs will be awarded to the respondent.
ORDER
THE COURT ORDERS THAT:
- This application for judicial review is dismissed with costs to the respondent the Attorney General of Canada.
"Simon Noël"
Judge
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
COURT No.: T-2121-03
STYLE OF CAUSE: ISABELLE D'AUTEUIL v. ATTORNEY GENERAL OF CANADA AND MARIE-CLAUDE MARQUIS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 16, 2004
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE SIMON NOËL
AND ORDER BY:
DATED: December 21, 2004
APPEARANCES:
Michelle Flaherty FOR THE APPLICANT
Alexandre Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Engelmann, Gottheil FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada