Demers

Parties/Partis: Demers, Telesphore v. The Attorney General of Canada

Court # Cour: A-188-73

Judgment/Jugement Date: 1974-02-19

Federal Court of Appeal

Ottawa, Ontario

Jackett, Pratte, Cameron

Heard: February 19, 1974

Jackett C.J. (orally):

This is a section 28 application to review and set aside a decision delivered by Mr. G.E. Swanson, as Chairman of an appeal board under section 21 of the Public Service Employment Act, on October 31, 1973, whereby he dismissed an appeal by the applicant against the proposed appointment of R.J.L. Read to a newly created position as "Unit Head, Technical Interpretations Division" in the Legislation Branch of the Department of National Revenue and Taxation.

A poster entitled "Opportunity for Promotion" with reference to the competition for the position was published under date of August 7, 1973. This poster referred to the position as:

AU 5 - Head Office

Unit Head, Technical

Interpretations Division

Legislation Branch,

stated that the competition was open to employees of the Department, set out the salary range and duties of the position and then, under the heading "Qualifications", after giving as the "Basic Requirements" that "Candidates must be classified in the Auditor Group or be qualified for entry to that Group" and that "Knowledge of either the English or French language is essential", spelled out in detail "Essential" and "Desirable" qualifications.

The applicant and Read were among the candidates in the competition. A selection board made a report on September 4, 1973, declaring Read to be the successful candidate.

By a letter dated September 18, 1974, the appellant appealed against the prospective appointment of Read. On October 31, 1973, Mr. Swanson, Chairman of the Appeal Board, dismissed the appeal.

The appeal against the proposed appointment was under section 21 of the Public Service Employment Act, which reads as follows:

21. Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service

(a) by closed competition, every unsuccessful candidate, or

(b) without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected,

may, within such period as the Commission prescribes, 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, are given an opportunity of being heard, and upon being notified of the board's decision on the inquiry the Commission shall,

(c) if the appointment has been made, confirm or revoke the appointment, or

(d) if the appointment has not been made, make or not make the appointment,

accordingly as the decision of the board requires.

The section 28 application to this Court is an application, under section 28(1) of the Federal Court Act, that the decision dismissing the appeal be set aside, and can only be granted on a ground that falls in one of the classes described in section 28(1). Applying section 28(1) to the circumstances of this case, this section 28 application can only be granted if, in making its decision, the appeal tribunal erred in law.

The applicant based his section 28 application on two contentions in respect of which this Court did not find it necessary to call on counsel for the respondent. The first of these was a contention that the Appeal Board erred in law in not holding that the selection board failed to comply with section 7(4) of the Public Service Employment Regulations when it made its report without considering his "Performance Rating". This contention depended upon section 7(4) applying to the competition in question. In our view, when section 7(4) is read with section 7(1), it is clear that it does not apply to a "closed competition", which the competition in question is, but to "other process of personnel selection" falling within section 7(1)(b). The other contention to which counsel for the respondent was not required to reply was that the Appeal Board erred in law in not holding that there was a fatal error in the selection process by reason of the fact that certain relevant selection standards adopted by the Public Service Commission under section 12 of the Public Service Employment Act had not been set out in the poster advertising the competition. In this connection, the applicant relied on the decision of this Court in Moreau v. Public Service Appeal Board. (see note 1 below) In that case, however, the Appeal Board had held that certain requirements of the selection standards, with which the successful candidate did not comply, could be ignored in that case and this Court held that such standards, by virtue of section 12, had to be complied with in making the selection of the person to be appointed. In this case, the successful candidate does comply with the selection standards. The only complaint is that the relevant selection standards should have been set out in the poster advertising the competition and were not so set out. There are, however, regulations governing what must be set out in the notice of the competition and it is not alleged that these regulations were not complied with. In effect, what must be advertised are the requirements of the department in respect of the employee to be appointed and not the "selection standards" set up by the Public Service Commission to govern the selection process. (see note 2 below)

[note 1: [1973] FC 593.

note 2: It must be recognized that some of the so-called "selection standards" prescribed by the Commission under section 12 so resemble statements of qualifications that a superficial reading of them makes one wonder whether they are really "selection standards" within section 12 at all. However, no opinion need be expressed on that question at this time.]

I turn now to the contentions put forward by the applicant in support of his section 28 application concerning which it was necessary to hear counsel for the respondent. In effect, the applicant contended that, notwithstanding the terms of the poster, which, as already noted, called for "knowledge of either the English or French language", it was an essential qualification for the position in question that the employee be bilingual. It is clear that, if he is wrong in that contention, there is no basis in law for his attack on the proposed appointment.

There is no doubt, on the material that has been put before this Court, that, as the qualifications for the position were framed when the request for appointment was made by the deputy minister under section 10 of the Public Service Employment Act, the language requirement was either French or English and that no action had been taken to change that requirement prior to the decision of the Appeal Board that is the subject of this section 28 application. (see note 3 below) That being so, this branch of the applicant's attack on that decision must fail.

[note 3: There must be some doubt whether of the essential requirements for a position can be changed after a competition is launched without cancelling the competition.]

What cause confusion is that a government policy directive had been issued in the form of a Treasury Board circular laying down principles to be applied by the departments in deciding what positions should be made bilingual; and it appears to be common ground that, if such principles had been applied when the department was framing the qualifications for the position here in question, it would have been made a bilingual position. There seems, moreover, to have bee some misapprehension on the part of the departmental officials, and also on the part of the Chairman of the Appeal Board, that this policy directive had some operative effect of its own force; and the Chairman, in his reasons for dismissing the appeal, discusses the matter on the basis that the position in question may have been bilingual.

In my view, the mere existence of the policy directive had no operative effect. It does not appear to have been made under statutory authority. In any event, as framed, it does not purport to do more than direct certain action by departments. Finally, as framed, it would not appear to have been intended to require any action in respect of a position in respect of which a section 10 request had been made to the Public Service Commission before the policy directive was communicated to that department until such time as occasion arose to initiate new action to have the position filled.

I have not overlooked the applicant's reliance on section 20 of the Public Service Employment Act and on the Official Languages Act. Insofar as section 20 is concerned, I have nothing to add to what I said with regard to that section in Bauer v. Appeal Board. (see note 4 below). So far as the Official Language Act is concerned, I have seen no provision in it that would operate, of its own force to make a particular position bilingual in the absence of departmental action.

[note 4: [1973] F.C. 626]

In my view, the Chairman of the Appeal Board, on the material before him, rightly dismissed the applicant's appeal and this section 28 application should, therefore, be dismissed.

Pratte, J. and Cameron D.J. concurred.