Keenan and Monteith

Parties/Partis: Keenan, Neil H. and Monteith, Kimberley v. Public Service Commission

Court # Cour: A-9-89

Judgment/Jugement Date: 1989-06-01

Reasons for judgment delivered by Mahoney J., allowing the appeal; concurred in by Heald and Stone JJ.

MAHONEY J.:

This appeal is from the refusal by the Trial Division of certiorari quashing a decision of the Respondent whereby it refused to express its opinion, as requested by the Appellants, whether or not their opportunities for advancement had been prejudicially affected by the appointment of another to a position in the Public Service and of mandamus requiring the Respondent to render that opinion. The matter arose as a result of the secondment of an employee from Revenue Canada, customs and Excise to a position with the Canada Employment and Immigration Commission as a result of the grant of 15 months leave of absence to the incumbent of that position. The Appellants sought to appeal pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32.

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 appearing 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.

Conditions precedent to a right to appeal are, firstly, there must have been, or be about to be, an appointment and, secondly, where there has been no competition as here, the proposed appellant must be a person whose opportunity for advancement, in the Commission's opinion, has been prejudicially affected.

The Act provides:

33. Subject to this Act, the Commission may make such regulations as it considers necessary to carry out and give effect to this Act.

Pursuant to that, the Public Service Employment Regulations, C.R.C. 1980, c. 1337, have been made. The following, which came into force March 5, 1986, SOR/86-286, are pertinent.

40. Where a person is appointed or is about to be appointed under the Act and the selection of the person for appointment was made from within the Public Service without competition, public notice shall be given of

(a) the name of the person appointed or about to be appointed; and

(b) the fact that any person may, within 14 days after the date the notice is given, request the opinion of the Commission referred to in paragraph 21(b) of the Act with respect to whether in its opinion that person's opportunity for advancement has been prejudicially affected.

41. (1) The person who requested the opinion of the Commission under paragaph 40(b) shall be given written notice of that opinion. It may be inferred, in the circumstances, that the public notice contemplated by regulation 40 was not given but that the Appellants, being on the spot and aware of the secondment, nevertheless made the request permitted by paragraph 40(b). The Commission's response, which is the decision sought to be quashed, in its material part, follows:

In order for the Commission to render an opinion, an appointment without competition must have been effected or be proposed. The investigation of this case has concluded that the secondment of Mr. Thornton does not constitute an appointment pursuant to the Public Service Employment Act. Consequently, the Commission has no jurisdiction to render an opinion in this case. For purposes of this judgment, it is unnecessary to attempt to define the terms "secondment", "assignment" and "appointment" in a comprehensive way. The material distinction between the first two is that a secondment involves the installation, to adopt a neutral term, of a person from another department or agency in a position while an assignment involves a person from within the same department or agency. The jurisprudence makes amply clear that either may, or may not, be an appointment depending on the particular circumstances, vid. Brault et al. v. A.G.C., [1987] 2 S.C.R. 489; Dore v. H.M., [1987] 2 S.C.R. 503 and Lucas v. P.S.C.A.B., [1987] 3 F.C. 354. I cite these decisions only to demonstrate that the question is an arguable one very much dependent on the circumstances of each case.

In my respectful opinion, the Act does not authorize the Commission to make that decision. Its authority, in the relevant circumstances, is limited by s. 21 to the formation and expression of an opinion as to whether the staffing action taken or proposed has prejudicially affected the opportunity for advancement of a person seeking to appeal. If put in issue, the question whether or not that staffing action was or will be an appointment is a matter to be decided by the appeal board. If it decides that the staffing action entailed no appointment, it will have decided that it is without jurisdiction to proceed but that is its decision to be made after the required hearing, not a decision to be reached by the Commission following investigation. I would allow the appeal with costs here and in the Trial Division. Pursuant to s. 52(b)(i) of the Federal Court Act, I would quash the decision of the Public Service Commission dated April 29, 1988, and would remit the matter to the Commission with the direction that it form and express its opinion as to whether the secondment in issue has prejudicially affected the Appellants' opportunity for advancement.

MAHONEY J. - HEALD J. - STONE J.