Dawidowski

T-2608-93 - T-110-94

Between: The Attorney General of Canada, Applicant and the Public Service Commission [Appeal Board] and Shirley Dawidowski, Respondents

Reasons for judgment

Richard J.:

These two applications of judicial review were heard together. The first is an application by way of originating notice of motion for an order setting aside the decision of the Public Service Commission Appeal Board by chairperson, Helen Barkley, file number 93-CAE-18J, rendered October 5, 1993. The second is an application by way of originating notice of motion for an order setting aside the decision of the Public Service Commission Appeal Board by chairperson, Joanne B. Archibald, file number 92-TAX-1008J, rendered December 17, 1993.

The respondent, Shirley Dawidowski, is an employee in the Edmonton District Office of Revenue Canada. She appealed under section 21 of the Public Service Employment Act against the appointment of David Niven to the position of Technical Advisor [AU-04] in the Department of National Revenue, Edmonton, Alberta.

The facts are briefly as follows. David Niven was appointed to the position of Business Audit Section Manager, classification level AU-04, in the Edmonton District Office, in Revenue Canada, effective April 12, 1989. On October 24, 1990, Mr. Niven accepted a three year assignment to the Department's District Office in Charlottetown, Prince-Edward-Island. Mr. Niven commenced his three year assignment as chief of Audit at the Charlottetown District Office on January 7, 1991. The secondment agreement provided that the period of secondment was for three years and that his salary would be paid at the AU-04 level, which was his substantive classification. The agreement contained the following provision:

At the termination of this secondment, Mr. Niven will be appointed to an indeterminate position at the AU-04 level in the Western Region. Notwithstanding the foregoing, he may apply on any competition and, if successful, may accept a position.

In a written memorandum dated March 18, 1993, the Director of Taxation in the Edmonton District Office confirmed to Mr. Niven:

In your secondment agreement for your assignment to Charlottetown District Office, you were guaranteed an appointment to a AU-04 position in the Western Region.

Mr. Niven returned to the Edmonton District Office on August 3, 1993, and was placed in a position at the AU-04 level, entitled Technical Advisor "C", with the Audit Branch.

The department objected to the jurisdiction of the Appeal Board on the grounds that no appointment had taken place.

In its first decision dated October 5, 1993, the Appeal Board determined that Mr. Niven had been appointed to the position of Technical Advisor within the meaning of the Public Service Employment Act and that, as a consequence of this finding, the Board had jurisdiction under section 21 of the Act to hear the respondents' appeal on its merits. In its second decision, the Appeal Board concluded that the appointment was not based on selection according to merit and allowed the appeal.

The first Appeal Board concluded that, after having reviewed all the evidence and arguments, Mr. Niven had been appointed to the position of Technical Advisor. The Appeal Board chairperson's reasons for this decision are as follows:

The secondment agreement of David Niven to the Charlottetown District Office clearly sets out that he would be performing the duties of the Chief of Audit in that office for a three year period, with the possibility of extending that period. During that time he was not performing the duties of his substantive position as Business Audit Section Manager in the Edmonton District Office. The secondment agreement set out the following term:

Completion of Secondment

At the termination of this Secondment, Mr. Niven will be appointed to an indeterminate position at the AU-04 level in the Western Region. Notwithstanding the foregoing, he may apply on any competition and, if successful, may accept a position.

The agreement does not refer to Mr. Niven's former position in the Edmonton District Office as a Business Audit Section Manager, but rather speaks of him being appointed to an indeterminate position at the AU-04 level in the Western Region.

Similarly the memorandum of 18 March 1993 begins by referring to the guarantee of his appointment to an AU-04 position in the Western Region. Then Mr. Lee makes an offer of a AU-04 position in the Edmonton District Office. Certainly the implication of both these documents is that Mr. Niven would be given a new appointment to an unspecified position at the AU-04 level.

However of much more importance is the determination of whether there has been a significant change in the duties which Mr. Niven was asked to perform. When Mr. Niven returned to the Edmonton District Office on 3 August 1993 he was placed in a position at the AU-04 level entitled Technical Advisor. I have reviewed the position descriptions for Business Audit Section Manager and Technical Advisor "C" and find that there are substantial differences in the positions. The Business Audit Section Manager description indicates that 40 percent of the Manager's time is spent on the supervision of a staff of up to 35 and that 30 percent of the time is spent on planning and directing the activities of a Business Audit Group. The position description for the Technical Advisor outlines the key activities as providing technical advice to tax auditors on complex tax issues, explaining the application of the law to external clients, continuing study of tax law and policy and delivering technical training. The Department's representative acknowledged that the two positions were different.

In my view, an appointment [to adopt the definition used in the Duncan and Gervais decisions] is a selection or designation of a person to discharge the duties of a position within the Public Service, and a further appointment occurs when there is a significant change in the duties which the employee is asked to perform. In this case Mr. Niven stopped performing the duties of Business Audit Section Manager in January 1991. On his return to the Edmonton District Office in August 1993 he was asked to perform the duties of Technical Advisor, a position which is significantly different from that of Business Audit Section Manager. I find that he was appointed to the position of Technical Advisor within the meaning of the Public Service Employment Act.

The two leading cases in this respect are Canada [A.G.] v. Brault and Doré v. Canada. These decisions recognize that the Public Service Employment Act lays down the requirement that an appointment to a position in the Public Service must be based on selection according to merit as determined by the applicable selection standards. These decisions also stand for the proposition that the right of appeal under section 21 of the Public Service Employment Act cannot depend on whether the Department chooses to regard what is done as the creation of a position and an appointment to it within the meaning of the Act. Rather, it is what the Department has objectively done, as a matter of fact and not what it may have intended or understood it was doing as a matter of law, that must determine the application of the merit principle and the right of appeal.

The Doré decision clearly stands for the proposition that while it must be possible for the administration to assign a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal, that reasonable flexibility should no longer be available where the assignment is permitted to become one of such significant and indefinite duration as may be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process.

Counsel for the applicant submits that the first Appeal Board only considered the extent of the change of duties and not the length of the assignment. The record discloses that the Appeal Board did have before it evidence concerning the duration of the assignment. In its decision, the Appeal Board noted the Department's claim that employees in the Audit Division had been asked to experiment with new duties on a temporary basis. Further, the Appeal Board, in reviewing the case for the appellant and the Department, also noted that the reorganization had been ongoing since April 1, 1993, that Mr. Niven had been assigned the functions of Technical Advisor on or about August 3, 1993, that the job descriptions for the reorganized Audit Division were still being revised as of September 17, 1993, [the date of the first hearing] that the Department expected them to be released in October, and that once the descriptions were finalized, it would then proceed to classification. It follows that any competition for the position would only be held thereafter. While the Appeal Board's reasons dwelt on the significant change of duties, it is clear that when the decision is read as a whole, the Appeal Board also considered the duration of the assignment.

I find that the Appeal Board acted within its jurisdiction and that there was evidence on the record before it to support its finding that Mr. Niven had been appointed to the position of Technical Advisor within the meaning of the Public Service Employment Act. In arriving at its decision, the first Appeal Board committed no error calling for the intervention of this Court on judicial review.

The decision of the second Appeal Board is unassailable on the merits since the applicant admitted that it had not assessed Ms. Dawidowski and Mr. Niven to determine their relative merit. Accordingly, Mr. Niven's appointment was not based on selection according to merit as required by section 10 of the Act.

At the hearing of these applications for judicial review, counsel for the applicant submitted, in the alternative, that Mr. Niven was subject to a de facto deployment pursuant to subsection 2[1] and Part III.1 of the Public Service Employment Act. This is not an issue that was raised by the Department before either the first or the second Appeal Board. The Department did not claim that it was a deployment and there is no evidence on the record to support such a claim.

Accordingly, both applications for judicial review are dismissed.

"J. Richard", Judge

Ottawa, Ontario

November 30, 1994

R.S.C. 1985, c. P-33, as amended by the Public Service Reform Act, S.C. 1993, c. 54.

Affidavit of Paul Lizée, exhibit C.

[1987] 2 S.C.R. 489.

[1987] 2 S.C.R. 503.