MacDonald

Parties/Partis: MacDonald, I. v. Appeal Board established by the Public Service Commission

Judgment/Jugement Date: 1973-10-16

Court of Appeal, Jackett CJ., Thurlow and Pratte J.

Ottawa, October 16, 1973.

JACKETT C.J. (orally):

Two section 28 applications by the same applicant have been heard together. In each case the applicant seeks to have set aside a decision of a board established for the purposes of section 21 of the Public Service Employment Act to hear an "appeal" of the applicant against appointments about to be made as the result of a competition in which the applicant was an unsuccessful candidate. Section 21 of the Public Service Employment Act reads as follows:

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 appealing 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.

The sole fact on which the applicant bases his section 28 applications is that, in each case, the Public Service Commission, acting by the Director of its Appeal Branch, appointed an officer of the Public Service Commission as the "Board" required by section 21 to conduct an "inquiry". (see note 1 below) [note *1. In particular, it should be noted that there is no suggestion of actual "bias" in either of these cases.]

Based on that fact, the applicant, by his Memorandum of Points of Argument in this Court, makes the following submissions:

1. He says that the sole member of the appeal "board" in each case was "disqualified by reason of interest and likelihood of bias because he was an officer or employee of the Public Service Commission"; and

2. He says that "it is inherent" in section 5 of the Act that appeal boards established to hear section 21 appeals be independent of the Public Service Commission, that the Commission's powers in relation to these "appeals" is confined "to establishing the board" and that "it necessarily follows that the Commission may not appoint its own officers or employees to sit on such appeals and render decisions thereon".

The applicant's arguments in support of these submissions are as follows:

It is a principle of common law that no man may be judge in his own cause. Although Parliament is competent to make a person judge in his own cause, it is necessary that legislation intended to do so be clear and unambiguous. It is submitted that section 5(d), far from being able to bear such a construction, clearly is intended to set up an independent board. The Courts will uphold the common law tradition against making a man a judge in his own cause by declining to accept such a construction of a statute if its wording is open to another construction.

In my view, the submissions of the applicant misconceive the nature of the proceedings under section 21 of the Public Service Employment Act and, indeed, are based on a lack of appreciation of the general scheme of the Act and of the constitution and duties of the Public Service Commission. Before considering the applicant's submissions, therefore, it is necessary to review the relevant parts of the Act. The Public Service Commission is an independent commission. See section 3 of the Act, which reads in part as follows:

3. (1) There shall be a Commission, to be called the Public Service Commission, consisting of a Chairman and two officer members to be appointed by the Governor in Council.

(2) Subject to this section, a commissioner holds office during good behaviour for a period of ten years, but may be removed at any time by the Governor in Council upon address of the Senate and House of Commons.

To this independent commission is assigned the exclusive authority to make appointments to the various parts of the Public Service. See section 8, which reads as follows:

6. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament. The fundamental objective of this method of appointment is to establish and maintain what is commonly referred to as the "merit" system. See section 10, which reads, in part:

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

The Commission is given almost a complete discretion as to how to accomplish its statutory task. Refer again to section 10, the relevant part of which reads:

10. Appointments... shall be made by the Commission... by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

As I indicated in Brooker v. Attorney General of Canada [1973] F.C. 327, it must be clear that Parliament did not have in mind that the Commission itself, which consists of only three members, would personally run every competition and personally catty on the mechanics of each of the other processes of personnel selection that might be adopted. Obviously, the size of the Public Service when the Public Service Employment Act was adopted in 1967 was such that Parliament must have intended that those three members utilize the services of a very large number of other persons in the selection processes. If this were otherwise in doubt, it is made clear by section 12 of the Act, which authorizes the Commission "in determining the basis of assessment of merit in relation to any position" to "prescribe selection standards... " It is clear, I think, that such persons might be either officers or employees of the Commission or persons employed by the Commission on contract (section 5(c)).

Furthermore the Commission may delegate its appointment authority to the departments for whom the appointments are to be made (section 6) and, as this Court held in the Brooker case (supra) the persons utilized in the selection process may be recruited from within or without the Public Service.

What is envisaged by the Public Service Employment Act are selections and appointments made, in part, by a large organization operating under the authority of the Commission and in part by the various departments under authorizations from the Commission, subject to such directions and standards as are established by the Commission. It is in the light of that statutory scheme that consideration must be given to the requirements of section 21, which is repeated here, in part, for convenience.

Section 21 of the Public Service Employment Act reads as follows:

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 ..... 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 appealing 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.

To appreciate the true legislative purpose of section 21, the situation in which it operates must be got into perspective. The independent Commission whose function is to make the merit system work is required to organize an operation in which many different people apply selection methods and make appointments in all the different branches of the Public Service throughout Canada. The actual selection processes and appointments are not, and in the nature of things cannot be, carried on by, or under the immediate supervision of, the three members of the Commission. There is such a volume of such operations that there are bound to be mistakes and any process of investigating to locate such mistakes must also be on such a scale that it cannot be carried on by the three Commissioners personally.

What section 21 contemplates, therefore, is that an unsuccessful candidate may "appeal" against an appointment or proposed appointment and that, when there is such an appeal, the Commission will establish a "board" to "conduct an inquiry" with regard thereto. It is clear from the various applications that have been made to this Court that, to enable it to discharge this duty, the Public Service Commission has set up an organization of Appeals Officers whose task is to conduct section 21 inquiries.

In my view, that is what is contemplated by the statute and I see no incompatibility at all between selection and appointment officers on the one hand and appeals officers on the other hand all operating under the authority of the Public Service Commission. It must be remembered that the Commission is an independent commission established to make the "merit" system work and that the appointment function and the appeal function are different stages of the "merit" system. Under section 21 the subject matter of the inquiry to be made by the Appeal Board is not an issue between the appellant and the Commission, nor is it a lis in respect of which the Commission has a position or a decision to defend against the complaint of the appellant. The Commission's sole interest in the matter is to ensure that the "merit" system is working as it ought to work. I am satisfied, therefore, that the mere fact that the Boards set up under section 21 are composed of members of the Public Service Commission staff is not sufficient to invalidate their decisions. In the circumstances, it is not necessary to express any opinion as to whether the principles concerning "bias" in connection with judicial and quasi-judicial tribunals have any application to boards set up under section 21. Compare Franklin v. Minister of Town and Country Planning [1948] A.C. 87 and B. Johnson & Co. (Builders) Ltd. v. Minister of Health [1947] 2 All E.R. 395.

I am of opinion that the application should be dismissed.

THURLOW and PRATTE J. concurred.