Kennedy

Parties / Partis: Michael Kennedy v. Public Service Commission.

Court # Cour : T-2982-89

Date of judgement / Date du jugement: February 27, 1990.

The following are the reasons for order rendered in English by

STRAYER J.:

RELIEF REQUESTED:

This is an application for certiorari to quash a decision of the Public Service Commission delivered July 10, 1989 which determined that the applicant's opportunity for advancement had not been prejudicially affected by the reclassification of certain positions in the Department of Energy, Mines and Resources; and for mandamus requiring the Commission to decide that question again in accordance with the requirements of section 21 of the Public Service Employment Act (see note 1 below).

[Note 1: R.S.C., 1985, c. P-33 which is the same in substance as the comparable section in the previous Act which was in force when most of the relevant events occurred.]

FACTS:

The applicant is employed at the Canada Centre for Mapping, part of the Department of Energy, Mines and Resources, in Ottawa. He is employed as a cartographic technologist and occupies a position classified at the DD-04 level. To the extent that the factual background is relevant, there seems to be no disagreement as to what actually happened. The applicant had been employed for some time at the Canada Centre for Mapping along with twenty three other cartographic technologists, all in positions classified DD-04. In about 1983 the centre acquired new computerized mapping equipment and offered training in respect of it to those who were interested and willing to accept shift-work. The applicant takes the position that at that time he was unable to accept shift-work with the result that he did not get training. He states that he later requested training and it was refused him. The other twenty-three cartographic technologists in question each took training and as they completed their training they received acting pay at the DD-05 level. In 1988 the positions were all classified as DD-05 and on July 28, 1988 the Public Service Commission gave notice of the appointment without competition of the twenty-three incumbents of DD-04 positions to their respective reclassified positions now at the DD-05 level. Shortly thereafter the applicant requested an opinion from the Commission, as required by section 21 of the Public Service Employment Act as a precondition to an appeal by him to an appeal board. Subsection 21(1) of that Act which is identical in substance to the provision current when the applicant first requested the Commission's opinion, provides as follows:

21. (1) 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, every unsuccessful candidate, in the case of selection by closed competition, or, in the case of selection without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected, may, within such a 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, shall be given an opportunity to be heard.

On September 30, 1988 the Commission stated its opinion that the opportunity for advancement of the applicant had not been prejudicially affected by the appointment without competition of the other twenty-three cartographic technologists to DD-05 positions. The reason given for that opinion was as follows:

It was clearly established that the requestor does not meet a basic requirement of the positions in question. His opportunity for advancement cannot be considered as prejudicially affected by the appointment of other individuals to positions for which he is not qualified.

The applicant sought certiorari and mandamus in this Court and such was granted by my colleague Martin J. on December 21, 1988 (see note 2 below). Martin J. concluded that the Commission had erred in law in deciding whether the applicant was qualified for the positions in question. He held that in the circumstances the Commission was [at page 186]:

[Note 2: Kennedy v. Public Service Commission (Can.) (1988), 25 F.T.R. 184 (F.C.T.D.).]

...exercising the jurisdiction which should properly be exercised by the appeal board and not by the Commission.

He therefore quashed the decision and directed that the Commission "render its opinion in accordance with the law" [at page 186].

In the course of his reasons Martin J. observed [at page 186]:

In this case, 23 similarly classified co-workers of the applicant were appointed to related positions at higher classification levels without competition. In my view the Commission had no need to go further than to consider those facts in order to determine, not whether the applicant should or should not have been appointed to one of those positions, but the prejudice which may or may not have been caused to the applicant as a result of those appointments without competition...

The Commission reconsidered the matter and by letter of July 10, 1989 advised the applicant of its opinion, dated June 23, 1989, that it still considered that his opportunity for advancement had not been prejudicially affected by the appointment of the twenty-three appointees. The reason given for this opinion is as follows:

The reclassification of these employees was based solely on individual performance within their own positions rather than an upgrade of the twenty-three positions; therefore, there has not been a selection of persons for appointment.

The applicant has brought this proceeding to have the June, 1989 opinion of the Commission quashed on the ground that the Commission erred in law or exceeded its jurisdiction in giving such opinion. The applicant characterizes the second opinion as involving either a conclusion that the applicant was not qualified for the positions to which his twenty-three colleagues were appointed, or that their elevation to the rank of DD-05 did not constitute an "appointment" and therefore does not comewithin the language of subsection 21(1) of the Public Service Employment Act. The applicant contends that the Commission had no authority under that subsection to either decide either of those matters. The Commission contends that it did not purport to decide such matters by the opinion which it formulated on June 23, 1989; instead, it says that it decided that the applicant was not prejudicially affected because there was no limit on the number of positions to be reclassified. That is, the reclassification of each position and the appointment thereto of the incumbent depended on the qualifications of the particular incumbent of that DD-04 position and thus the applicant suffered no disadvantage in the non-reclassification of his position by the fact that the positions of twenty-three of his colleagues were reclassified to DD-05.

ISSUES:

The essential issues here are:

(1) What is the role of the Public Service Commission under subsection 21(1) of the Public Service Employment Act?

(2) Can the opinion of the Commission formulated on June 23, 1989 and issued on July 10, 1989 be characterized as within that role?

CONCLUSIONS:

The respective responsibilities under subsection 21(1) of the Commission and an appeal board are not well defined.

At the outset one can assume that both are bound to respect the fundamental principle stated in section 10 of the Act that:

10. Appointments to or from within the Public Service shall be based on selection according to merit...

whether they are made with or without competition. If one took literally the words of subsection 21(1) requiring the Commission, when requested, to give an opinion as to whether a given person's "opportunity for advancement...has been prejudicially affected" by a selection without competition, and if one ignored the other words of the subsection, one could attribute the Commission a plenary power to decide whether the merit principle has been applied. That is, the Commission could address all matters such as whether there had indeed been an "appointment" and whether the person in question was better qualified for that appointment than the person who was in fact appointed. These decisions could all be seen as part of a determination as to whether that person ever had an "opportunity for advancement". One who never had the necessary talent for the job could not be "prejudicially affected". Nor could he be prejudiced by and "appointment" if there has not, in law, been an "appointment". But such a broad interpretation would make meaningless the provision for hearing before an appeal board.

It is also apparent that there must be some functional difference between the giving of an opinion by the Commission and the determination of an appeal by an appeal board. The Commission in issuing an opinion has been held to perform an administrative function in which it is expected to exercise its expertise (see note 3 below). On the other hand, appeal boards are regarded as exercisingquasi-judicial functions. Thus subsection 21(1) specifically provides for the right of the appellant to be heard by the appeal board whereas he has no such statutory right to be heard by the Commission in respect of the issue of an opinion by it under that subsection. The Federal Court of Appeal has underlined the need for the appeal board to give an appellant a fair hearing, including the right to cross-examine witnesses called on behalf of the deputy head in opposition to the appeal (see note 4 below). The Court of Appeal has attributed to appeal boards exclusive jurisdiction over fundamental questions such as whether the filling of a position is an "appointment" within the meaning of the section (see note 5 below). The Court of Appeal has also stated that the essential question for an appeal board to determine is whether the selection of the successful candidate has been made in accordance with the merit principle (see note 6 below), and that in doing so it can take a broad look at the circumstances leading up to the selection (such as a temporary assignment to the position in question having been made of the successful candidate for several months prior to a competition, and the nature of the questions put to the candidates by the selection board (see note 7 below)).

[Note 3: Nenn v. The Queen, [1981] 1 S.C.R. 631, at p. 637]

[Note 4: See e.g. Sorobey v. Canada (Public Service Commission Appeal Board), [1987] 1 F.C. 219 (C.A.) at p. 221]

[Note 5: Keenan v. Canada (Public Service Commission), [1989] 3 F.C. 643 (C.A.)]

[Note 6: Blagdon v. Public Service Commission [1976] 1 F.C. 615 (C.A.) at p. 618]

[Note 7: Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272 (C.A.)]

If there is any unifying concept to define the jurisdiction of the appeal board, as opposed to that of the Commission, under subsection 21(1) it would appear to be that it should be for the boards to decide disputed question of fact pertinent to a determination as to whether the merit principle has been applied in the making of an appointment. This is demonstrated, for example, in the decision of the Federal Court of Appeal in the Keenan case. There the Court held that it was for the appeal board to determine whether a secondment or assignment amounted to an "appointment" and Mahoney J.A. writing for the Court stated:

The jurisprudence makes it amply clear that either may, or may not, be an appointment depending on the particular circumstanced, vid. Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; Doré v. Canada, [1987] 2 S.C.R. 503; and Lucas c. Canada (Public Service Commission Appeal Board), [1987] 3 F.C. 354 (C.A.). I cite these decisions only to demonstrate that the question is an arguable one very much dependent of the circumstances on 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 section 21 to the formation and expression of an opinion as to whether the staffing action taken or proposed has prejudicially affect 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 (see note 8 below).

[Note 8: Supra, note 5, at p. 646]

While this of course involves a certain interpretation of the law as well, it appears that fairly disputable questions of fact should be determined by an appeal board after a fair hearing in which both parties may participate.

Thus it appears that the role of the Commission under subsection 21(1) in respect of appointments made without competition is of a relatively limited nature. It is apparent that the Commission is to act as a screening mechanism to identify those who ought to be seen as having sufficient standing to challenge the appointment that has been made on the basis of an alleged departure from the merit principle. This includes, among other things, a determination whether in law the would-be-appellant can show that he has lost some advantage even is all that he alleges is true. I respectfully agree with the decision of my colleague Martin J., who quashed the first opinion rendered by the Commission on September 30, 1988 in respect of this applicant on the basis that the Commission had no authority under subsection 21(1) to determine whether the applicant was qualified for the position in question. That is clearly an issue potentially involving the relative qualifications of the applicant and his twenty-three colleagues, a matter on which he should be entitled to a fair hearing before an appeal board. But there are other more objective questions which may properly be determined by the Commission.

Without attempting to define the category of decisions left to the Commission, I believe it has the power in the exercise of its expertise to form the opinion that where the appointment complained of is non-exclusive (i.e. one which in no way limits the possibility of other similar appointments to other similarly reclassified positions) then persons not appointed to that position can not in law be regarded as prejudicially affected. If any content is to be given to the power granted to the Commission in subsection 21(1) to form an opinion, it seems to me that this at least must be within that power. I also derive support for this conclusion from the decision of the Court of Appeal in Yergeau v. Public Service Commission Appeal Board (see note 9 below) where it was held that the Commission could not fulfil its responsibilities under subsection 21(1) by adopting a general regulation implying that where a person is appointed to a reclassified position which he occupied prior to its reclassification this would be deemed not to have prejudicially affected the opportunity for advancement of any other person. Instead, it was held that such a decision had to be taken individually by the Commission with respect to any person seeking to appeal, and the Court of Appeal specifically referred that question back to the Commission for its opinion. That question was essentially identical to the one facing the Commission in the present case.

[Note 9: [1978] 2 F.C. 129 (C.A.)]

Further, I believe that the second opinion formulated by the Commission in this matter of June 23, 1989 can be characterized as an exercise of such a power. While the language of the reasons for the opinion is somewhat ambiguous, I think it is reasonable to interpret the words

... there has not been a selection of persons for appointment

in the context to mean that there has not been a selection among a larger number of people for a limited number of posts. Rather, each position has been reclassified upward where the incumbent metthe requisite requirements and the appointment of one incumbent to his reclassified position does not affect the opportunity for appointment of the incumbent of another position to his own position as reclassified.

Notwithstanding the submissions of the applicant, I do not accept that the Commission ignored the opinion of Martin J. that it need go no further than consider that twenty-three similarly classified workers were appointed to reclassified positions and the applicant was not. The Commission obviously has now considered those uncontroverted facts but has concluded that in law they do not demonstrate any prejudicial affectation of the applicant's opportunities for the reclassification of his position and his appointment thereto.

It must be remembered at all times that an application for judicial review is not an appeal and the Court is not at liberty to substitute its own opinion on the facts for that of the authority being reviewed. I am satisfied that the Commission has not misdirected itself on the permissible legal interpretation of subsection 21(1) or as to its jurisdiction under that subsection. There is therefore no basis for quashing the decision.

DISPOSITION:

The applicant is therefore dismissed with costs.