Lalancette et al.,

Parties/Partis: Rock Lalancette v. Public Service Commission Appeal Board and Marcel Bénard

Court # Cour: A-115-81

Judgment/Jugement Date: 1981-06-25

MR. JUSTICE PRATTE:

The applicant seeks to have put aside, pursuant to section 28 of the Federal Court Act, the decision of an Appeal Board established by the Public Service Commission. In that decision, the Appeal Board dismissed the applicant's appeal which had been made pursuant to section 21 of the Public Service Employment Act, for the reason that it had been brought after the appeal period prescribed in the Public Service Employment Regulations had expired.

It will be useful to go over the relevant parts of the Act and Regulations.

Section 21 of the Public Service Employment Act provides that an appeal such as the present one must be brought "within such period as the Commission prescribes." In a regulation which it adopted pursuant to section 33 of the Act (see note 1 below), the Commission prescribed a 14-day period for appealing. Sections 39, 41, 42 and 45 of the Public Service Employment Regulations are the relevant sections:

[note 1: Section 33 of the Public Service Employment Act reads as follows:

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

39. Where an employee is appointed or is about to be appointed to a position by a closed competition, every unsuccessful candidate who has responded to notice or been identified by means of an inventory for that competition, shall be notified by notice in writing or by public notice of

(a) his right to appeal under paragraph 21(a) of the Act within 14 days;

(b) the name of the employee appointed or about to be appointed; and

(c) the name and ranking of those candidates on the eligibility list.

41. Every appeal under section 21 of the Act by

(a) a person who has been notified pursuant to section 39, or

(b) a person deemed to be prejudicially affected pursuant to subsection 40(1)

shall be brought within 14 days after he was notified pursuant to section 39 or 40.

42. For the purposes of sections 39 or 41, a person shall be deemed to be notified on the day notice in writing has been sent to him by mail or delivered to him by hand or the day the public notice was posted, whichever is the earlier.

45. (1) Every appeal brought under section 21 or 31 of the Act shall be in writing addressed to the Commission and shall state the grounds on which the appeal is based, such writing being hereinafter referred to as the "appeal document."

(2) Every appeal document shall state whether the appeal is to be presented in the English language or in the French language.

The facts of the case are that the applicant was a public servant who had taken part in a closed competition held in accordance with the Public Service Employment Regulations. On December 12, 1980, he received the notice to which section 39 of the Regulations refers. This notice, which had been mailed on December 3, indicated to him that he had to exercise his right to appeal before December 18. On December 12, the applicant mailed to the Commission an appeal document such as is referred to in section 45 of the Regulations. However, this appeal document did not reach the Commission until December 18, which was after the expiry of the 14-day period prescribed by section 41 of the Regulations.

On the above facts, the Appeal Board decided that the applicant had not exercised his right to appeal within the period which the Act and Regulations prescribed and for that reason, it decided the appeal had to be dismissed. The Appeal Board based its conclusions upon a judgment that this Court rendered in the Allard v. Public Service Commission (see note 2 below) case, and in that case I had given judgment in the following terms:

[note 2: unreported judgment no. A-492-80. These reasons for judgment were following in the Ciampa v. Public Service Commission Appeal Board case no. A-545-80, rendered January 30, 1981, also unreported.]

The language used in section 21 of the Public Service Employment Act is such that it seems inescapable that the right of appeal provided for in that section can no longer be exercised after the prescribed appeal period has lapsed. In other words, the time prescribed to launch an appeal is mandatory. As for the argument based upon the date of sending of the appeal document, it seems to me that that argument is not relevant. No appeal can be said to be brought merely because a signature has been placed upon a document of appeal which is addressed to the Public Service Commission or because such document has been given to a messenger. So long as that appeal document has not reached the Public Service Commission itself, I am of the view that no valid appeal exists.

The first and foremost problem which the present application raises is whether the Allard case had been properly decided. I believe it was. But I hasten to add that if it were given to me to decide it anew, I would use terms that were more discerning.

It is clear to me that section 21 of the Act provides for a right to appeal only insofar as that right is exercised within the period which the Commission prescribes. The Commission felt it should prescribe a set period, but it did not see fit to provide for an extension of time under certain conditions. While this rigidity may be unfortunate, it means that as things stand, the prescribed appeal period must be complied with strictly and in all cases, and is not one which either Appeal Boards or this Court have any power to extend. On the other hand, the very fact that the Regulations provide for an appeal period which is relatively short and cannot under any conditions be extended must not be lost sight of when interpreting the relevant Regulation. Thus, when interpreting this Regulation, one is obliged to assume that the Commission had not wished to turn the right to appeal which the Act provides into an illusory right; in addition, one must keep in mind the everyday conditions under which this right is normally exercised: I am here referring to the dimensions of the country and also to the fact that the right to appeal may be exercised by persons in all parts of the country and even at times by persons outside of it. Under these conditions, it is fully to be expected that the document of appeal which section 45 of the Regulations states must be "addressed" to the Commission, will be despatched by mail. It would thus seem fair to me to consider that an appeal has been brought according to the terms of section 41 of the Regulations at the time the document of appeal was mailed. However, I would only adopt this approach in cases where the document of appeal has been sent by mail and where the date of mailing can therefore be readily proven. In any other case, where, as happened in the Allard and Ciampa ones, the document is sent by means other than the postal system, my view is that one must continue to consider that the appeal is only brought at the time the appeal document reaches the Commission. To act otherwise would create evidentiary difficulties and might well lead to abuse.

For these reasons, I would set aside the decision under attack and I would send the case back to the Appeal Board for a decision on the basis that an appeal is brought within the terms of section 41 of the Regulations at the time the appeal document addressed to the Commission is mailed.