Kroeplin

Parties/Partis: Jack Kroeplin v. Public Service Commission Appeal Board

Court # Cour: A-323-87

Judgment/Jugement Date: 1988-02-18

REASONS FOR JUDGMENT OF THE COURT

MAHONEY J.

The only issue in this s. 28 application is whether Competition no. 86-MC-SM-492, was an open or a closed competition, within the contemplation of the Public Service Employment Act, R.S.C. 1970, c. P-32. The Act provides:

2. (1) In this Act

"closed competition" means a competition that is open only to persons employed in the Public Service.

"open competition" means a competition that is open to persons who are employed in the Public Service as well as to persons who are not so employed.

Section 21 provides for an appeal against the selection of a person for appointment by closed competition. The Act makes no provision for an appeal against an appointment by open competition.

This is not a case where the intention to hold a closed competition was declared and persons not employed in the Public Service were improperly considered. Rather, on the facts as found by the Appeal Board, no decision as to the type of competition was declared in advance. Thus, its nature is to be determined by what actually happened.

Twenty-five of the candidates considered for the only position to be filled as a result of the competition were not employed in the Public Service. It follows that, by definition, the competition was an open competition and the Appeal Board erred in law in concluding otherwise. The Appeal Board constituted under section 21 of the Act was without jurisdiction to deal with the appeal.

This section 28 application will be allowed and the decision of the Appeal Board dated May 6, 1987, allowing the appeal will be set aside. As that will have the effect of restoring the Applicant to his status as the successful candidate, it appears unnecessary to remit the matter to the Appeal Board as requested by the Applicant and the Attorney General.

P.M. Mahoney J.F.C.C.