Mackay

Parties/Partis: Donald Ashby MacKay v. Attorney General of Canada, Edgar Gallant and Pierre Pronovost

Judgment/Jugement Date: 1978-06-26

The following are the reasons for judgment rendered in English by WALSH J.

This action was tried on the basis of a revised agreed statement of facts wherein it was agreed that paragraph 1 of the defence filed by the Deputy Attorney General of Canada accurately sets out the material facts, except that:

(a) The competitions referred to in paragraph (c) thereof were closed competitions within the meaning of the definition of that phrase in subsection 2(1) of the Public Service Employment Act;

(b) The Plaintiff does not agree that the determination referred to in paragraph (e) thereof was "in accordance with s. 13 of the Public Service Employment Act..." and

(c) The letter dated August 29, 1977 from the defendant Pierre Pronovost referred to in paragraph (f) of the defence filed herein informed the plaintiff that:

Unfortunately, we are unable to consider your candidacy for this competition as only the employees of the province of Quebec and Atlantic provinces are eligible.

In the agreed statement of facts it was further stated that:

The Canada Employment and Immigration Commission (or its predecessor in the conduct of the competitions) gave notice of the competitions and of the said determinations by way of posters and otherwise, all in accordance with s. 14 of the Public Service Employment Act.

The paragraph 1 of the statement of defence referred to in the revised agreed statement of facts reads as follows:

1. In answer to the Statement of Claim as a whole, the Deputy Attorney General of Canada says that:

(a) The Plaintiff is employed by Her Majesty the Queen in right of Canada as represented by the Treasury Board, and has been so employed at Ottawa, Ontario for more than 4 years and resides in the Province of Ontario;

(b) The Defendant Edgar Gallant is the Chairman of the Public Service Commission established under the Public Service Employment Act, R.S.C. 1970 c. P-32;

(c) At the times material to this action the Canada Employment and Immigration Commission, established under the Employment and Immigration Department and Commission Act, S.C. 1976-77, c. 54, was conducting competitions for the positions of Adjudicator PM-4 under competition numbers 77-M&I-CC-IMM-H8, 77-M&I- CC-IMM-H9 and 77-M&I-CC-IMM-H10, the authority to do so having been delegated to the Chairman of the said Commission in accordance with subsection 6(1) of the Public Service Employment Act;

(d) There were 3 selection boards constituted to select and place the highest ranking candidates in the said competitions on eligible lists as necessary to provide for the filling of vacancies across Canada for the positions of adjudicator, and the Defendant, Pierre Pronovost, was the Chairman of the selection board constituted to select and place the highest ranking candidates on eligible lists, as necessary to provide for the filling of vacancies in competition number 77-M&I-CC-IMM-H-10 for the positions of adjudicator in Quebec and the Atlantic Provinces;

(e) In accordance with section 13 of the Public Service Employment Act, the Canada Employment and Immigration Commission (or its predecessor in the conduct of the said competitions) determined that the persons eligible for appointment through the competition numbered 77-M&I-CC-IMM-H-10 must be:

Employees of M&I, UIC and the IAB in the Quebec and Atlantic Provinces occupying positions having a maximum yearly salary from $19,123 to $21,299

and that the persons eligible for appointment through the competition numbered 77-M&I-CC-IMM-H9 must be Employees of M&I, UIC and IAB in the Province of Ontario and at Headquarters occupying positions having a maximum yearly salary from $19,123 to $21,299.

(f) The Plaintiff submitted applications for competition numbered 77-M&I-CC-IMM-H9 and 77-M&I-CC-IMM-H10 but was informed by way of a letter dated August 29, 1977 from the Defendant Pierre Pronovost that he was not eligible for appointment through the competition numbered 77-M&I-CC-IMM-H10 because the Plaintiff was not employed in Quebec or the Atlantic Provinces;

(g) The Plaintiff's application in the competition numbered 77-M&I-CC-IMM-H9 for the position of adjudicator in Ontario was considered by the selection board constituted to select and place the highest ranking candidates in that competition but his name was not placed on the eligible list because he failed to meet the qualifications for the position.

(h) The qualifications for the positions of adjudicator in the competition numbered 77-M&I-CC-IMM-H9 in Ontario were the same as the qualifications for the positions of adjudicator in the competition numbered 77-M&I-CC-IMM-H10 in Quebec and the Atlantic Provinces, and the basis for assessment of the candidates' qualifications for the positions was the same;

(i) The competition numbered 77-M&I-CC-IMM-H10 is concluded in that:

(i) the eligible list with respect to the positions of adjudicator PM-4 in Quebec and the Atlantic Provinces was established with 12 successful candidates;

(ii) the period within which unsuccessful candidates had the right under section 21 of the Public Service Employment Act to appeal against the appointment of the persons identified on the said eligible list expired on November 29, 1977; and

(iii) There were no successful appeals and there are no outstanding appeals against the appointment of the persons identified on the said eligible list

It is common ground that plaintiff was employed in the Public Service in Ottawa and resided in the Province of Ontario at the times material to the action. The issue arises because plaintiff was informed by defendant Pierre Pronovost that he was not eligible for appointment through the competition numbered 77-M&I-CC-IMM-H10 (hereinafter conveniently referred to as H10) because he was not an employee of Quebec or the Atlantic Provinces. He originally came from Halifax and was educated at Dalhousie University and it was his wish and desire to return to Halifax or the Maritime area. However he did apply for the competition under number 77-M&I-CC-IMM-H9 (hereinafter referred to as H9) for Ontario but in that competition his name was not placed on the eligible list because he failed to meet the qualifications for the position and as indicated in the statement of defence the basis for assessment of the candidates' qualifications for the position were the same. The delay in which unsuccessful candidates in the H10 competition could appeal has expired but this has no significance in any event since he was not allowed to participate in that competition.

Section 13 of the Public Service Employment Act(see note 1 below) reads as follows:

[note 1: R.S.C. 1970, c. P-32]

13. Before conducting a competition, the commission shall

(a) determine the area in which applicants must reside in order to be eligible for appointment; and

(b) in the case of a closed competition, determine the part, if any, of the Public Service and the occupational nature and level of positions, if any, in which prospective candidates must be employed in order to be eligible for appointment.

The competition was a closed competition which is defined in section 2(1) of the Act as follows:

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

While plaintiff based one of his arguments on the fact that in the case of a closed competition the Commission may only determine the part, if any, of the Public Service and the occupational nature and level of positions, if any, in which the prospective candidates must be employed in order to be eligible for appointment, in accordance with section 13(b) of the Act and cannot otherwise impose any limitation on the eligibility for appointment of the prospective candidates, there is no doubt that this does not exclude the operation of paragraph (a) of section 13 which is followed by the word "and" so that the right to determine the area in which applicants must reside in order to be eligible for appointment in paragraph (a) applies generally to both, open and closed competitions, in addition to which in the case of a closed competition further requirements can be imposed pursuant to paragraph (b), as was done in this case.

Plaintiff's principal contention rests on the argument that in advising him that he could not be considered as a candidate for the H10 competition for Quebec and the Atlantic Provinces this exclusion was based on the area in which he was employed rather than on the area in which he resides, the latter being a criterion which the Commission may use pursuant to section 13(a) of the Act, whereas nowhere in the Act is there any authority to use the place where he is employed as a criterion, and that this is particularly so in the case of a closed competition pursuant to section 13(b) which in defining the criteria specifically authorized in the case of a closed competition makes no reference to the area in which a candidate must be employed in order to enter such a competition.

Certainly residence and place of employment are not necessarily synonymous although in most cases they will be. However in the case of plaintiff he could not claim to be resident elsewhere than in Ontario where he was also employed. One can readily foresee, however, problems of interpretation which could arise in the case of an applicant resident in Hull but employed in the Public Service in Ottawa or conversely, and it is plaintiff's contention that even if he cannot claim to have personally been in such an ambiguous category nevertheless, if the Commission in advertising a competition erroneously bases one of the qualifications on place of employment rather than on area of residence as it is entitled to do, then the entire competition is invalid as defendants exceeded their jurisdiction and had no authority to impose any restriction on eligibility on any of the candidates based upon the geographic area in which they might be employed at the date of their applications.

It appears that the Commission may have foreseen and attempted to overcome the difficulty with respect to an employee residing in Hull and employed in Ottawa or conversely in that whereas the restriction imposed in the advertisement for competition H10 reads as follows:

Employees of M&I, UIC and the IAB in the Quebec and Atlantic Provinces occupying positions having a maximum yearly salary from $19,123 to $21,299,

whereas that for competition H9 read:

Employees of M&I, UIC and the IAB in the Province of Ontario and at Headquarters occupying positions having a maximum yearly salary from $19,123 to $21,299.

Apparently employees employed at Headquarters would be expected to apply in the Ontario competition H9 and would be able to do so even though they resided in Hull or elsewhere on the Quebec side of the provincial border. One might wonder what would have been done if an employee at Headquarters residing in the Province of Quebec preferred to apply in the Quebec and Atlantic provinces competition H10. In such a case the Commission if it refused this and directed the applicant to the Ontario competition would certainly be unable to argue that the restriction was based on the area of residence pursuant to section 13(a) unless the whole of the Outaouais Region is considered as an "area" rather than considering an area as the Province in which the applicant was resident at the time of the application. All this is hypothetical however since in the case of plaintiff he not only was employed in the Public Service in Ontario but also resided in Ontario, so in his case the two were synonymous and it is only common sense that he should have been directed to the Ontario competition. His willingness and even his desire to reside in the Atlantic Provinces should he be successful in the competition would have been entirely irrelevant if it had been clear that the competition was restricted to persons in the employ of the Public Service and subject to limitations of section 13(b) and also limited to those residing in Quebec or the Atlantic Provinces pursuant to the provisions of section 13(a), as the Act gives the Commission the power to impose these qualifications.

The problem in the present case arises from the interpretation of the advertisement and whether in fact place of employment was not confused with and substituted for area of residence which would not be permissible under the Act.

The wording of the advertisement "OPEN TO: Employees of M&I, UIC and the IAB in the Quebec and Atlantic Provinces" can certainly be read in one interpretation as referring to persons so employed in those provinces wherever they may reside, and in such event the restriction would not be one authorized by the Act. On the other hand defendants contend that the use of the word "of" followed by the three departments whose employees are eligible (within the salary limitations) has the effect of dealing with the question of employment and the word "in" followed by the words "the Quebec and Atlantic Provinces" must therefore refer to the place where they are residing and hence the restriction validly comes within section 13(a). The wording of the advertisement for Ontario competition H9 does not help Defendants since the word "Headquarters" clearly cannot designate a residential area and hence the restriction in connection with that advertisement cannot be held to have been based on area of residence pursuant to section 13(a). However, it is not the competition H9 which plaintiff seeks to set aside in the present case, so this advertisement can only be referred to in an attempt to interpret the advertisement in connection with competition H10.

The wording of the letter of defendant Pierre Pronovost to plaintiff states "only the employees of the province of Quebec and Atlantic provinces are eligible" whereas the advertisement uses the words "in the Quebec and Atlantic Provinces", I do not believe that there is any significance however in the use of the word "of" instead of the use of the word "in". If anything it might be somewhat more favourable to plaintiff who might possibly have contended that he is "of" the Atlantic Provinces his province of origin whereas he certainly was neither resident nor employed "in" Quebec or the Atlantic Provinces at the time of the competition.

If plaintiff had only applied for the competition H10 and been declared ineligible for it he might be in a better position to contend that he had been deprived of his rights or suffered some denial of natural justice, but as he also applied for H9 and was in effect directed to take it, which he did and failed to meet the qualifications, and as it is conceded that the basis for the assessment of the qualifications is the same in the two competitions he cannot claim to have suffered any prejudice. While his counsel attempted to argue that the number of candidates might have been greater, or the qualifications stricter in the Ontario competition than that for Quebec and Maritime Provinces this would appear to be pure speculation and is in fact contrary to the admitted facts on which the action is being tried.

While there may be some ambiguity therefore in the wording of the notice it is not possible to conclude that Plaintiff was in any way dealt with unfairly or on a discriminatory basis.

While some jurisprudence was referred to by the parties no cases are directly in point. In the case of Fredette v. Public Service Commission (see note 2 below) it was held that an unsuccessful candidate in a closed competition did not lose his right to appeal from an unfavourable decision because his employment in the Public Service had been terminated before the appeal was heard. Cattanach, J. sitting with the Court of Appeal clearly stated at page 1347 that the fact that no different result would follow even if discretion were not exercised in favour of the applicant was not something that he was entitled to assume. Defendants referred to the case of Griffon v. Attorney General of Canada (see note 3 below) in which the applicant complained that the notice of competition did not contain a statement of qualifications for the position nor mention any linguistic requirements. The competition however, was for promotion from one translator group to another. Jackett, C.J. stated at pages 672-673:

[note 2: 1972 F.C. 1343

note 3: 1973 F.C. 670]

...I agree with the Appeal Board that it was not in the circumstances a ground for setting aside the result of the competition. In my view, a failure to comply with such a regulation should only be held by the Appeal Board to have invalidated an appointment if it concludes that there is a real possibility that compliance with the Regulation might have brought about a different result. As the Appeal Board has indicated here, it was obvious from the fact that the competition was for promotion from one translator group to another that bilingualism was an essential requirement for the position.

Reference was also made by Defendants to the case of Brown v. Appeals Branch, Public Service Commission (see note 4 below) Jackett, C.J., stated at page 374-375:

[note 4: [1975] F.C. 345]

In reaching this conclusion, I think it is important to bear in mind that the section 21 appeal procedure is an administrative review of an administrative process and should be conducted with a view to finding and correcting injustices and not so as blindly to create technical difficulties and delays. Administrative documents should not be read "microscopically" but with a view to extracting the meaning that must have been intended by the administrators by whom they were created.

While the statement of facts in that case was entirely different I am of the view that plaintiff's appeal in the present is a highly technical one, that the advertisement for the competition H10 would clearly have excluded him even though it does not use the words "residing in the Quebec and Atlantic Provinces" as it well might have, as he neither resided nor worked there, and that the proper competition for him to apply for was the Ontario competition to which he was directed, and that he suffered no prejudice by, having his application restricted to that competition.

In any event the competition was being conducted by the Employment and Immigration Commission established under the Employment and Immigration Department and Commission Act(see note 5 below) and not by the Public Service Commission established under the provisions of the Public Service Employment Act and since Edgar Gallant was Chairman of the Public Service Commission no claim can lie against him so the action would have to be dismissed with respect to defendant Edgar Gallant.

[note 5: S.C. 1976-77, c. 54, Part I]

Plaintiff's action is therefore dismissed with costs.