Moreau

Parties/Partis: Moreau, J.A. v. Public Service Appeal Board

Judgment/Jugement Date: 1973-05-24

Court of Appeal, Jackett CJ., Thurlow J. and Cameron D.J.

Ottawa, May 24, 1973.

THURLOW J. (orally):

This is an application under section 28 of the Federal Court Act to review and set aside the decision of an Appeal Board established under section 21 of the Public Service Employment Act which dismissed the applicant's appeal against the proposed appointment of the successful candidate in public service competition number 72-NRCE-CC-VAN-38. The basis of the applicant's appeal was that there had been a failure to comply with Public Service Employment Regulation 7(1), which requires that every appointment be in accordance with selection standards, in that basic qualifications for the position at stake in the competition as advertised did not conform to prescribed selection standards.

Authority for the establishment of selection standards is contained in section 12 of the Public Service Employment Act which provides that:

12. (1) The Commission may, in determining pursuant to section 10 the basis of assessment of merit in relation to any position or class of positions, prescribe selection standards as to education, knowledge, experience, language, age, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed, but any such selection standards shall not be inconsistent with any classification standard prescribed pursuant to the Financial Administration Act for that position or any position in that class.

Under this provision the Commission had prescribed with respect to the position in question, that of senior audit supervisor (AU-3), basic qualifications as follows:

- Eligibility for certification as a professional accountant, as defined on page 7; OR university graduation with an appropriate concentration in accounting, business administration, commerce, or finance.

- Demonstrated ability to conduct, under general supervision, audits of a type and complexity relevant to the assignment.

- Willingness to travel, in some assignments.

Eligibility for certification was defined as:

ELIGIBILITY FOR CERTIFICATION: Successful completion of the education, examination and experience requirements prescribed by the Canadian Institute of Chartered Accountants, the Certified General Accountants' Association, the Society of Industrial and Cost Accountants, or such other body as is deemed by one of these organizations to be equivalent.

The same basic requirements were prescribed with respect to persons holding an auditor position (AU-2) and indeed with respect to all seven classes of the auditing group.

As advertised, the competition in question was open only to auditors of the class known as AU-2 and the basic requirements were described as follows:

QUALIFICATIONS: (Basic):

Knowledge of the English language is essential. Demonstrated ability to conduct, under general supervision, audits of a difficult and complex nature.

The successful candidate, a long-time employee of the department in question, was an auditor of the AU-2 class but did not have the professional certification or university graduation qualifications referred to in the selection standards as above quoted.

In dismissing the applicant's appeal the Board held that since the successful candidate was in a AU-2 position he was within what was referred to as the "Area of Competition" and, with respect to the applicant's contention that the basic requirements were not in accordance with the selection standards for the Auditing Group, that the responsible staffing officer, in determining the basic requirements, exercised his judgment in a fair and reasonable manner, that the Rating Board was required to assess the candidates on the basis of the specifications listed in the competition poster and that a review of the duties and qualifications that appear on the competition poster indicated "that the standards required by the Rating Board were consistent with the appropriate selection standards."

This decision is attacked on the ground that the Board erred in law in determining that the responsible staffing officer had a discretion, when determining the relevant qualifications for the position to be advertised, to omit the educational requirements for the position contained in the selection standards prescribed by the Commission.

On the face of it there does not appear to be any answer to the submission that the appointment attacked was illegal as having been made contrary to the provisions of the Public Service Employment Act but counsel for the respondent sought to support it by submitting that on the proper interpretation of the selection standards adopted by the Commission the basic educational qualifications for the position of Auditor AU-3 as set out therein were intended to be and were subject to modification in the discretion of the responsible staffing officer. In my opinion that document cannot be so interpreted. It follows that the decision of the Appeal Board should be set aside and the matter referred back to the Board for reconsideration and redetermination of the applicant's appeal on that basis.

JACKETT CJ. and CAMERON DJ. concurred.