Date: 19991013
Docket: A-539-95
Ottawa, Ontario, Wednesday, October 13, 1999.
| Coram: DÉCARY |
LÉTOURNEAU
NOËL JJ.A.
Between:
LOUIS ASSELIN
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
- and -
COMMISSIONER OF OFFICIAL LANGUAGES
Intervenor
JUDGMENT
The appeal is dismissed without costs.
| "Robert Décary" |
| J.A. |
Certified true translation
Bernard Olivier
Date: 19991013
Docket: A-539-95
| Coram: DÉCARY |
LÉTOURNEAU
NOËL JJ.A.
Between:
LOUIS ASSELIN
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
- and -
COMMISSIONER OF OFFICIAL LANGUAGES
Intervenor
Hearing held in Ottawa, Ontario, Wednesday, October 13, 1999.
Judgment rendered at the hearing in Ottawa, Ontario, Wednesday, October 13, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY, J.A.
Date: 19991013
Docket: A-539-95
| Coram: DÉCARY |
LÉTOURNEAU
NOËL JJ.A.
Between:
LOUIS ASSELIN
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
- and -
COMMISSIONER OF OFFICIAL LANGUAGES
Intervenor
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Ottawa, Ontario
Wednesday, October 13, 1999)
DÉCARY J.A.
[1] Does the president of an appeal board ("the appeal board") constituted by the Public Service Commission ("the Commission") under section 21 of the Public Service Employment Act , R.S.C. 1985, c. P-33 ("the Act") have jurisdiction to challenge the validity of the linguistic profile of a position to be filled?
[2] Dubé J., in a decision reported at (1995), 100 F.T.R. 309, held that he does not. This is an appeal from that decision.
[3] There is no question that until the Public Service Employment Act was amended, in 1992, the issue no longer arose. The cases were clear: an appeal board, whether it was dealing with general qualifications (Canada (Attorney General) v. Blashford, [1991] 2 F.C. 44 (C.A.)) or with a linguistic profile (Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.)), could address itself only to the process by which the Commission selected a candidate; it did not have jurisdiction to challenge the conditions established by a department for obtaining a position.
[4] What was the effect on this case law of the addition, in 1992, of section 12.1 (S.C. 1992, c. 54, s. 11), which came into force on June 1, 1993?
[5] The new section reads as follows:
12.1 The Commission may review any qualifications established by a deputy head for appointment to any position or class of positions to ensure that the qualifications afford a basis for selection according to merit.
12.1 La Commission peut réviser les qualifications établies par un administrateur général pour les nominations à tel poste ou telle catégorie de postes afin de faire en sorte que ces qualifications satisfassent au principe de la sélection au mérite.
[6] The appellant argues that the new section gives the appeal board the power to challenge the validity of the qualifications on which the competition was based. This section does not have that meaning. One need only situate it in its context and carefully read the words Parliament has used to be persuaded of this.
[7] Section 12.1 is located under the heading "Appointments", which includes sections 10, 11, 12 and 12.1. These sections define what is meant by "selection according to merit". Subsection 12(1) establishes that it is the Commission that prescribes standards for selection and assessment "[f]or the purpose of establishing the basis for selection according to merit" ("pour déterminer . . . les principes de la sélection au mérite"). Section 12.1, which follows section 12, allows the Commission to "review any qualifications established by a deputy head" in order "to ensure that the qualifications afford a basis for selection according to merit" ("afin de faire en sorte que ces qualifications satisfassent au principe de la sélection au mérite") (our emphasis).
[8] We have reproduced and underlined the English text to indicate clearly that section 12.1 is simply a continuation of subsection 12(1). Like that subsection, it is addressed only to "the basis for selection according to merit" and while it expressly authorizes the Commission to review the qualifications established by a department, this is solely "to ensure" ("faire en sorte") that the nature and formulation of these qualifications are consistent with the basis for and process of selection according to merit. The Commission might, for example, be of the opinion that a qualification imposed by a department conflicts with the principle of selection according to merit or that this qualification is so formulated as to prevent any useful assessment from being made. The Commission could not, however, use this section to interfere with the managerial powers of a department and alter the otherwise valid and verifiable qualifications for selection according to merit that the department has adopted.
[9] The heading "Appointments" is followed by the heading entitled "Competitions", which includes sections 13 to 20, defines the terms and conditions of competitions and establishes the appointment procedure once a competition is completed.
[10] This is followed by the heading "Appeals", which includes sections 21 and 21.1 and is directed to appeals brought following the holding of a competition.
[11] It appears, at first sight, that the power of review conferred by section 12.1, the parameters of which we described above, is a power that should be exercised by the Commission before a particular competition is completed. Counsel for the Commission emphasized to us that section 12.1 could be applied independently of the holding of a particular competition, since it allows a review of the qualifications established for "any . . . class of positions". Even so, it still remains that in regard to a particular "position", it is inconceivable that the power of review would be exercised during the competition to the detriment of candidates who have already entered or those who were excluded or failed to apply owing to some qualification that the Commission now wished to review. Once it changes the ground rules along the way, the Commission should very definitely recommence the selection process or adjust it accordingly.
[12] Similarly, even if it could be claimed that an appeal board is a commissioner or an employee of the Commission to which the Commission may delegate its powers under section 6.1, it is simply not possible to maintain that an appeal board could be delegated a power of review the exercise of which is necessarily prior to its own assumption of duties.
[13] Counsel for the Commission informed us at the hearing that in practice the Commission does not even see the qualifications established by a department before a competition is held. This practice is disturbing, to say the least. Section 12.1 allows the Commission to review the exercise by a department of the powers it has delegated to it and thus to review what a department does in a particular case. It does not force it to do so, of course, but if the Commission is systematically placed in a position such that it is unable to review the qualifications established by a department before a competition is held, there is in all probability an abdication of authority. Needless to say, the Commission cannot delegate to a department the power conferred on the Commission by the Act to review the qualifications established by that department.
[14] We conclude, therefore, that section 12.1 has in no way altered the powers of a review board. Such a board has no greater jurisdiction now than it had before to challenge the linguistic level of a position. The decision rendered by this Court in the Viola case, supra par. 3, remains even more so applicable that the restriction that the Court then had to impose on the interpretation of language rights, in view of the Supreme Court of Canada"s judgment in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education , [1986] 1 S.C.R. 549, was recently lifted by R. v. Beaulac, [1999] 1 S.C.R. 768.
[15] The appeal is dismissed, without costs in the circumstances.
| "Robert Décary" |
| J.A. |
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: A-539-95 |
| STYLE: LOUIS ASSELIN v. ATTORNEY GENERAL OF CANADA and COMMISSIONER OF OFFICIAL LANGUAGES |
| PLACE OF HEARING: OTTAWA, ONTARIO |
| DATE OF HEARING: OCTOBER 13, 1999 |
REASONS FOR JUDGMENT OF THE COURT (DÉCARY, LÉTOURNEAU AND NOËL, JJ.A)
RENDERED AT THE HEARING OCTOBER 13, 1999
APPEARANCES:
Mr. Louis Asselin THE APPELLANT
representing himself
Mr. Alain Préfontaine FOR THE RESPONDENT
Mr. Richard L. Tardif FOR THE INTERVENOR
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
Mr. Richard L. Tardif
Office of the Commissioner
of Official Languages FOR THE INTERVENOR