Murray

Parties/Partis: E.O. Murray v. The Public Service Commission of Canada

Court # Cour: A-89-86

Judgment/Jugement Date: 1987-05-27

REASONS FOR JUDGMENT OF THE COURT

MAHONEY, J.

This section 28 application seeks to set aside a decision of an Appeal Board constituted under section 31 of the Public Service Employment Act. The Applicant's discharge from his public service position had been recommended pursuant to section 31 of the Act on the ground of his incompetence. The refusal of the Appeal Board to intervene in that recommendation is the subject of this application.

While stated and restated in various arguments, the Applicant's case is predicated on a single proposition, namely that his 1978 appointment was a nullity in that it was made in a manner that did not meet the requirement of section 10 of the Act that appointments to positions in the public service be made according to merit. The nullity, he says, taints his occupation of all subsequent positions; since he was not legally hired, he cannot be legally fired.

We think it unnecessary to express an opinion on whether the manner of appointment was somehow flawed since the appointment was clearly not a nullity. The Applicant contends that appointments contrary to the merit principle are void ab initio. We do not accept that; they are voidable, not void. Until the appointment is voided, an appointee is legally the occupant of the position and is entitled and required to perform the duties and to be paid the salary attached to it.

We have been persuaded that the Appeal Board did make one error of law. That lay in its acceptance that the validity of the Applicant's appointment to the position was a matter in issue before it. That error does not assist the Applicant. He cannot maintain an attack on the recommendation that he be discharged from the position by now attacking the validity of his appointment to it.

This section 28 application will be dismissed.

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