Jollimore

Parties/Partis: Attorney General of Canada v. Ella Jollimore

Court # Cour: A-19-90

Judgment/Jugement Date: 1990-11-23

REASONS FOR JUDGMENT

DÉCARY J.A.

This application to review and set aside a decision rendered by the Public Service Commission Appeal Board acting pursuant to section 21 of the Public Service Employment Act was heard immediately following that of Attorney General of Canada v. Viola (A-312-89). Counsel for all parties agreed that both applications should be decided in the same manner.

In July of 1989, the Public Service Commission posted a notice of closed competition for the position of Secretary to the Director of Industry and Technology of the Department of Regional Industrial Expansion in Halifax. One of the requirements of the position was "bilingual imperative "PPC/CCC". Applicants who did not possess this qualification were screened out of the competition. The Respondent applied for the position and was eventually informed that her candidacy had been screened out of the competition because she had failed both the typing test in French and the English shorthand test. The Respondent appealed to the Appeal Board against that appointment of the successful candidate. The chairman of the Appeal Board in granting the appeal used the following language:

The contention on behalf of the appellant was therefore that establishment of a bilingual requirement, with French called for at the rather advanced CCC level, was unjustifiable and indefensible in the existing circumstances.

My appreciation of the evidence before me leaves me only able to concur with this contention. By contrast, I am unable to retain similar reservationswith respect to the inclusion by the department of the ability, to take dictation in shorthand...

It follows from all of the foregoing that I see my intervention as warranted in this case solely with respect to the linguistic requirement attached to the position for the purposesof the present selection process. Had such an indefensible qualification not been prescribed the outcome of the present competition could well have been different.

In any event, one cannot be assured of adherence to the merit principle with it in place. For the reasons given this day in Viola, I am of the view that the Appeal Board did not possess jurisdiction to review the appropriateness of the language requirements imposed by the Department of Regional Industrial Expansion. The Appeal Board erred in law when it stated that "when the validity of a requirement is directly involved in an appeal it behooves the board to take a position on the question so involved."

Whether they be related to language or to shorthand, and both were considered in the instant case by the Appeal Board, the appropriateness of the requirements established by a department can simply not be challenged before an Appeal Board. I would therefore allow the application, set aside the decision under attack and refer the matter back to the Appeal Board for decision on the basis that it does not possess jurisdiction to review the appropriateness or the legality of the linguistic qualifications required by the Department for the position to be staffed.

Robert Décary J.A. I agree - Louis Pratte, J.A. I agree - Mark R. Macguigan, J.A.