Caldwell et al.,

Parties/Partis: Raymond Caldwell, John Kemp, Elda Paliga, Maria Perreault, David Sosiak and Howard Wagner v. Her Majesty the Queen as represented by the Public Service Commission, Canada Employment and Immigration Commission, the Department of Employment and Immigration, the Minister of Employment and Immigration

Court # Cour: A-194-78

Judgment/Jugement Date: 1978-10-25

REASONS FOR JUDGMENT

PRATTE, J.:

This is a section 28 application to review and set aside the decision of an Appeal Board dismissing appeals brought by the Applicants pursuant to section 21 of the Public Service Employment Act. By those appeals the Applicants had attacked the appointments or proposed appointments of 17 persons whose names had been placed on an eligible list established as a result of a closed competition held under the provisions of section 7(1)(a) of the Public Service Employment Regulations.

In order to understand the problems raised by this application, it is sufficient to know, at this stage, that the evidence adduced before the Board clearly showed that serious irregularities had occurred in the conduct of the competition in that, at a written examination, some candidates had been allowed to use reference material whereas that advantage had been denied to others. The Board, nevertheless, dismissed the appeals because, in its view, the evidence showed that none of the selected candidates had benefited form that irregularity and been allowed to use reference material.

Counsel for the Applicants first argued that the Appeal Board had erred in holding that the absence of any advantage to the successful candidates cured the irregularities of the competition. He said that the duty of the Board in the conduct of the inquiry was to satisfy itself that the merit principle had been adhered to throughout the process of selection. As that principle, in his submission, "embraces the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done," he contended that the Board was bound to allow the appeals and annul the results of the competition since it had found that competition to have been tainted with irregularities creating at least an appearance of unfairness.

As we indicated at the hearing, there is, in our view, no merit in that argument. An appeal under section 21 of the Public Service Employment Act is not directed against a selection process but against one or more appointments or proposed appointments. The question to be determined by an Appeal Board under section 21 is not whether the selection process that culminated in the appointment under attack was, in all respects, regular and fair, but whether that appointment would contravene the merit principle. Once an Appeal Board is satisfied that the result of a competition has not been influenced by an irregularity, it may not rely on that irregularity to allow the appeal.

The Applicants' second argument was that the Appeal Board had based its decision on evidence that should not have been considered since it had been obtained without the knowledge of the Applicants during another inquiry relating to another appeal.

The record shows that during the Board's inquiry relating to the Applicants' appeals, evidence was adduced from which the Board could reasonably infer that 16 of the 17 selected candidates had not benefited from the irregularity of the competition. It is the evidence relating to the remaining candidate that, in the Applicants' submission, should not have been considered. The only information in the material before us with respect to that evidence appears in two short passages of the Board's decision. The first passage is contained in that part of the decision where the Board related how the representative of the Department had replied to the allegations of the Appellants. After having indicated that evidence had been adduced with regard to 16 of the 17 selected candidates, the Board said:

The Department did not consider it necessary to call Mr. McNamara (the remaining selected candidate from the Toronto area) to give evidence because Mr. S. Norris, an appellant whose appeal had been heard separately, had stated in evidence that he and Mr. McNamara had written the examination at 2180 Yonge Street during the afternoon of December 15, 1977 and the invigilator had not allowed candidates to use reference material.

The only other reference to that evidence is found in that part of the decision where the Board expressed its reasons for dismissing the appeals. It reads as follows:

It has also been convincingly shown through the evidence of an appellant that another selected candidate, Mr. McNamara, did not use such material.

The merit of the Applicants' contention must be judged solely in the light of the information contained in or to be inferred from those two passages of the decision. That contention is not, however, that the Board considered inadmissible evidence. It is common ground that Appeal Boards are not bound by the rules of evidence. The Applicants' real complaint, as we understand it, is that the Board, in relying on evidence adduced in another appeal, deprived them of the opportunity to be heard to which they were entitled. That contention would be founded if the record showed that the Appellants had not been given the opportunity of challenging the evidence adduced in respect of McNamara. But the record does not disclose anything of the sort. There is nothing in the material before us and, particularly, in the Board's decision from which such a conclusion could be drawn. For this reason, we are of the opinion that this second argument of the Applicants must also be dismissed.

Counsel for the Applicants also argued, but without much vigour, that the Appeal Board had erred in rejecting the Appellants' contention that certain questions of the written examination were unreasonable. We indicated at the hearing that, in our view, the Board had not made, in that respect, any error that could be reviewed under section 28.

For those reasons, the application will be dismissed.

Louis Pratte

J.F.C.C.