Federal Court of Appeal Decisions

Date: 19971222

Docket: A-196-97

CORAM:      DESJARDINS J.A.

DÉCARY J.A.

LINDEN J.A.

IN THE MATTER OF an application for judicial review and set aside, and, for declaratory relief pursuant to section 18.(1) and 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

AND IN THE MATTER OF a decision of an appeal board, established pursuant to paragraph 5(c) of the Public Service Employment Act, rendered by John A. Mooney, dated 21 November 1995, with respect to the appeal of Marilla Lo under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-32, as amended.

BETWEEN:

     THE PUBLIC SERVICE COMMISSION APPEAL BOARD, and

     THE PUBLIC SERVICE COMMISSION OF CANADA, and

     THE TREASURY BOARD SECRETARIAT OF CANADA

     Appellants

     (Respondents)

     - and -

     MARILLA LO

     Respondent

     (Applicant)

Heard at Ottawa, Ontario, on Thursday, December 18, 1997

Judgment delivered from the Bench on Thursday, December 18, 1997

REASONS FOR JUDGMENT OF THE COURT:      DESJARDINS J.A.

Date: 19971222

Docket: A-196-97

CORAM:      DESJARDINS J.A.

DÉCARY J.A.

LINDEN J.A.

IN THE MATTER OF an application for judicial review and set aside, and, for declaratory relief pursuant to section 18.(1) and 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended;

AND IN THE MATTER OF a decision of an appeal board, established pursuant to paragraph 5(c) of the Public Service Employment Act, rendered by John A. Mooney, dated 21 November 1995, with respect to the appeal of Marilla Lo under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-32, as amended.

BETWEEN:

     THE PUBLIC SERVICE COMMISSION APPEAL BOARD, and

     THE PUBLIC SERVICE COMMISSION OF CANADA, and

     THE TREASURY BOARD SECRETARIAT OF CANADA

     Appellants

     (Respondents)

     - and -

     MARILLA LO

     Respondent

     (Applicant)

     REASONS FOR JUDGMENT OF THE COURT

     (Rendered from the Bench on Thursday, December 18, 1997)

DESJARDINS J.A.

[1]      This is an appeal from a decision of Gibson J. which allowed the respondent's application for judicial review and referred the matter back to the Public Service Appeal Board for a "rehearing, if necessary, and redetermination of the respondent's appeal on the issue of a defect in the process for the selection for appointment of Ms. Steadman in the closed competition in question."¹

[2]      The key issue before the motions judge was whether the appeal board had erred in deciding that the appeal of the respondent had become moot by reason of the fact that the incumbent of the contested position, Ms. Steadman, had been transferred to another position and had since retired. In concluding that the matter was not moot, the motions judge relied principally on amendments made to section 21 of the Public Service Employment Act (the "Act"), which came into force in 1993,² after the decision of this Court in Noël v. Canada (Minister of Employment and Immigration).³ Subsection 21(3), on which he relied, read in context with section 21 as a whole, now reads:

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.

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) 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.

(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) 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) 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) 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.

(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) 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.

(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) 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.

(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.

[3]      The facts are not in dispute.

[4]      In July 1993, the respondent applied for a closed FI-4 competition 93-TBD-CC-007, position of Senior Analyst (FI-04), Treasury Board Secretariat, Ottawa, Ontario. The respondent was notified by Senior Staffing Officer of the Treasury Board Secretariat that she had been qualified in every aspect except the linguistic requirement and that Mr. Wilson and Ms. Steadman ranked first and second on the list of successful candidates. On October 1, 1993, the respondent appealed the selection process to the Board, pursuant to section 21 of the Act, on the basis that there had been an improper use of the selection standards to qualify those candidates. On November 21, 1995, the Board determined that no further action should be taken. The respondent then brought an application for judicial review of that decision before Pinard J. of the Trial Division.

[5]      Pinard J. found that the candidates who had ranked first and second, Mr. Wilson and Ms. Steadman, did not possess the educational qualifications stated on the competition poster and that an improper selection standard had been used to qualify the two candidates. He concluded that the appeal board had erred in dismissing the appeal. As a result, he allowed the application, he set aside the Board's decision, and he referred the matter back to the Commission for it to appoint a new constituted board.⁴

[6]      In the meantime, Ms. Steadman was transferred laterally to another position in the public service under the federal government's Work Force Adjustment Policy. She retired the day of her transfer.

[7]      The new appeal board held, on the basis of this Court's decision in Noël, that the respondent's appeal had become moot.

[8]      The respondent, this time again, filed an application for judicial review of the appeal board decision.

[9]      Gibson J., who heard the application, was of the view that the Noël decision was distinguishable on the facts. But, principally, he held that subsection 21(3) of the Act adopted after the pronouncement of the Noël decision had the effect of increasing the powers of the Commission. The Commission could now take any measure or measures that it considered necessary to remedy the defect which had occurred in the selection process. The fact that Ms. Steadman had been transferred and subsequently resigned did not, he said, "render the Public Service Commission powerless to take corrective action which, in the circumstances, was only limited by its imagination."⁵ He held that the matter was to be returned to the Board for a redetermination on that basis.

[10]      We are all of the view that the motions judge correctly decided that the Board erred in concluding that the appeal before it was moot. The motions judge, however, erred in giving such a wide interpretation to subsection 21(3) of the Act.

[11]      The Noël decision is clearly distinguishable. In Noël, the Commission had established an appeal board to inquire into the acting appointment without competition of a certain employee. At the hearing in Noël, the representative of the Minister had informed the appeal board that the Department had terminated the impugned acting appointment and argued that the appeal had become moot. On an application for judicial review, Décary J.A., for the Court, held that the appeal board had correctly found in favour of the Department. Although sympathy was expressed towards the applicant, this Court decided that because there was no longer an appointment, no confirmation or revocation of the appointment was possible. The appeal process set out in section 21 was not, therefore, the appropriate remedy.

[12]      In the case at bar, an appointment was made and, although the incumbent has left that position and the public service itself, the contested appointment has not been revoked by the Commission and ought to be dealt with. It would be too easy for a department or an appointee to avoid the appeal process and prevent an inquiry as to whether the merit principle has been respected in the selection process by simply moving to another position.

[13]      The Board was bound by the decision of Pinard J. who had found that the appointment of Ms. Steadman contravened the merit principle. The appeal against the appointment of Ms. Steadman should, therefore, have been allowed and the Board should have notified the Commission that, as a result, her appointment should have been revoked pursuant to paragraph 21(2)(a) of the Act.

[14]      We do not agree with the motions judge's view that the addition of subsection 21(3) in 1993 gave the Commission the power "to take corrective action which, in the circumstances, was only limited by its imagination". Subsection 21(3), even more so when read together with subsection 21(4), also a new provision, gives the Commission only the power to remedy a defect in the impugned selection process; it does not give the Commission any more power it already had with respect to the appointment itself. To suggest, as does the motions judge, that the Commission is now given the power, through the appeal process, to take any corrective action in favour of the unsuccessful candidate is, in our respectful view, to ignore the very limited purpose of the appeal process. The Commission has not been transformed into a tribunal empowered to pronounce declaratory judgments or to entertain claims in damages or whatever by an unsuccessful candidate.

[15]      Where does this leave the respondent herself?

[16]      The appeal process set out in section 21 of the Act is a limited one. It does not give the unsuccessful candidate the right to be appointed should his or her appeal succeed. As noted by Pratte J.A. in Charest v. Attorney General of Canada⁶ the right of appeal created by section 21 "is not to protect the appellant's rights". What he said in context is the following:

Under section 10 of the Public Service Employment Act, "Appointments to... the Public Service shall be based on selection according to merit...". The holding of a competition is one means provided by the Act to attain the objective of selection by merit. However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle, As, in my view, this is what the legislator had in mind in enacting section 21, it seems clear that a Board appointed under this section is not acting in an irregular manner if, having found that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates, it decides that no appointment should be made as a result of that competition.

[Emphasis in text]

[17]      The respondent, therefore, cannot claim more than the integrity of the application of the merit principle. She, herself, cannot obtain more. In any case, the appeal board determined that she did not meet the language requirement necessary for the position.

[18]      For all these reasons, the appeal will be allowed only insofar as to make possible modifications to the order issued by the motions judge. Such order will now read:

The application for judicial review is allowed. The matter is referred back to the Public Service Appeal Board for a redetermination on the basis that the appeal by the applicant against the appointment of Ms. Steadman should be allowed.

[19]      The whole with costs on the appeal in favour of the respondent.

     "Alice Desjardins"

     J.A.

__________________

¹      Lo v. Public Service Commission Appeal Board (Can.) et al. (1997), 126 F.T.R. 264 at 281.

²      S.C. 1992, c. 54, s. 16 proclaimed in force 1 June 1993.

³      (1991), 136 N.R. 398.

⁴      Lo v. Canada (Minister of Employment and Immigration) (1995), 95 F.T.R. 132.

⁵      Lo v. Public Service Commission Appeal Board (Can.) et al. (1997), 126 F.T.R. 274 at 280, para. 15.

⁶      [1973] F.C. 1217 at 1221 (C.A.) Pratte J.A. See, also Shannon v. Canada (Attorney General), [1993] 1 F.C. 331 (C.A.).