Peet

Parties/Partis: Dr. Fred B. Peet, Applicant, and Attorney General of Canada [Forestry Canada] Respondent
Court # Cour: T-738-95
Judgment/Jugement Date: 96-01-18

Reasons for Order

Rouleau, J.

This is an application for judicial review of a decision of the Public Service Commission Appeal Board dated March 16, 1995 respecting appointments without competition to the position of research scientist RES-04 and RES-05, Natural Resources Canada, Canadian Forest Service ["The Department"]. The applicant challenges the decision which confirmed on appeal the promotion and reclassification of incumbent-based individuals submitting that the Department from the outset lacked the requisite capacity to regrade and reclassify. The promotions in issue were made pursuant to subsection 10[2] of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended and subparagraph 4[2][b][iii] of the Public Service Employment Regulations [these sections will be further explained during the course of the discussion].

The applicant is a research scientist who is located at the Pacific Forestry Centre for Forestry Canada in Victoria, British Columbia and is categorized within the Public Service as a member of the incumbent-based research scientists group.

In 1993, the Department of Forestry was authorized to make a number of promotions. Unlike other groups within the Public Service which are position-based, incumbent-based individuals have no defined duties. Rather it is the person's duties and performance that define the position and classification. The employees are assessed, recommendations are made and they are generally promoted on individual merit within their department, unlike position-based employees who are within well defined categories.

A number of scientists proceeded to seek promotion and reclassification based on performance. Three within the group succeeded but the applicant was not selected for promotion and reclassification. He appealed the decision, submitting that the department had no authority to review the incumbents and recommend reclassifications and promotions within this occupational group. He argued that the delegated authority by the Public Service Commission to the department was deficient and, as a result, it lacked the capacity to promote and reclassify. The challenge is not on the basis that he was more meritorious than his fellow scientists, nor that their reclassification hindered his possibility of promotion since the quotas allocated were greater than the number chosen.

In October of 1993, a memorandum was issued from the Assistant Deputy Minister of the Canadian Forest Service to Regional Directors General indicating that it was time to undertake the annual promotion exercise for research scientists. Within the memorandum there were a certain number of guidelines worth noting:

Method of Classifying Position and Incumbents

The candidate is appointed by a staffing action to a classification level designated in relation to the individual qualifications of the candidate. The classification level of the position is then formallyassigned, and the classification action is complete.

When a scientist is promoted to the next higher classification level while still remaining in the same position, the position classification level will be adjusted to correspond to ensure classification coincidence between the incumbent and the position.

It is not disputed that only the Public Service Commission has the authority and the capacity to promote or reclassify. Nevertheless, the Commission may delegate the promotion exercise to a Department. A letter from Natural Resources Canada was directed to the Public Service Commission requesting the delegation of authority for the promotion of research scientists under subsection 10[2] of the Public Service Employment Act. For clarification, section 10 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended, is reproduced below:

10.[1] Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, 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.

[2] For the purposes of subsection [1], selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.

We are not concerned in this application with appointments under subsection 10[1] of the Act since incumbent-based candidates are appointed pursuant to subsection 10[2]. Promotions and selections are subject to subsection 4[2] of the Regulation, which provides as follows:

4.[2] A selection referred to in subsection 10[2] of the Act may be made in any of the following circumstances, namely

[a] ...

[b] where an employee is to be appointed to the employee's reclassified position and

[i] the position has been reclassified as a result of a classification audit or grievance,

[ii] the position is one of a group of similar positions of the same occupational group and level in a part of an organization that have all been reclassified, or

[iii] there are no other similar positions in the same occupational group and level within the same part of the organization;

[c] where an employee is to be promoted within an occupational group in which positions are classified according to the qualifications of the incumbents;

Subsection 4[1] refers to appointments under subsection 10[1] of the Act; subsection 4[2] is the regulation which determines selections under subsection 10[2] of the Act.

By letter dated May 26, 1993, Forest Service Canada was advised that it would be delegated the necessary authority effective June 1, 1993. Included in the staffing delegation from the Commission was the following:

The Deputy Minister is delegated the authority to make certain appointments without competition as specified in the Public Service Employment Act and Regulations. This delegation deals with the transfer of employees, the reappointment of terms to the same position, the change in tenure of an employee including appointments covered by a Five Year Term Exclusion Approval Order, and the promotion of an employee to a higher level position. In addition, the Deputy Minister can promote an employee based on an assessment against a standard of competence in the case of a reclassification of the standard of competence of the employee's own position. This authority includes the requirements to notify employees of the right to appeal such appointments without competition if applicable.

Attached to the delegation agreement, there is specific reference in schedule A to subsection 10[2] in which it is indicated:

10.[2]Appointment based on merit according to a Standard of Competence

This was followed up by a memorandum dated July 7, 1993 to all Directors of Personnel and Chiefs of Staffing, entitled "Amendments to the Staffing Delegation and Accountability Agreement" and included the following paragraph:

The general reference to section 4 of the PSER has been amended for greater clarity. There is now reference to subsection 4[1] of the PSER which deals with appointments without competition under subsection 10[1] of the PSEA and to paragraph 4[2][b] of the PSER which relates to the reclassifications made in accordance with subsection 10[2] of the PSEA.

Specifically mentioned in the amendment is attached Schedule A which refers more precisely:

4.[2][b] Processes of Personnel Selection made pursuant to PSEA 10.[2] - reclassification.

It is apparent from arguments submitted by counsel that the delegation of authority for reclassification under subsection 10[2] of the Act was directed to reclassification and promotion under paragraph 4[2][b] of the Public Service Employment Regulations and did not include paragraph 4[2][c].

The dispute between the parties may be summarized as follows: The Applicant submits that since the delegation of authority was specific as well as restrictive, these promotions could not be allowed under regulation 4[2][b][iii]. On the other hand, the Respondent agrees with the decision rendered by the Appeal Board of the Public Service Commission of Canada. The Chairperson wrote:

The issue before me is not whether paragraph 4[2][c] might also be appropriate to the Research Scientist promotion exercise. In my view, the issue is limited to a determination of whether subparagraph 4[2][b][iii] was properly used. On the basis of the evidence before me, I do not conclude that the department acted wrongly in making its appointments as it did. It assessed the appointees against the standard for competence for Research Scientists and found them qualified. It proceeded to appoint them. I find nothing assailable in the sequence of these events. The fact that a promotion ensued does not in my view exclude the exercise from the operation of subparagraph 4[2][b][iii] of the Regulations.

The Applicant disputes the determination that the incumbent-based candidates could be promoted or reclassified under subparagraph 4[2][b][iii]. He argues that the specific and limited authorizationextended to the Department by the Commission under subsection 10[2] of the Act made reference only to paragraph 4[2][b] of the Regulations and that research scientists could and should only be reclassified under paragraph 4[2][c] since the Department did not receive a proper delegation of authority, the reclassifications and appointments made by it were void ab initio.

Regulation 4[2][b] deals with personnel selection envisaged by subsection 10[2] of the Act. The Applicant submits that under paragraph 4[2][b], for an employee to be reclassified, he/she may be promoted if "[i] if the position has been reclassified as a result of a classification audit or grievance" and must, in addition, qualify under either subparagraph 4[2][b][ii] or [iii].

His interpretation of paragraph 4[2][b] is that two pre-conditions must exist before one can accede to promotion and reclassification. He submits this because of the manner in which the subsections of the Regulations has been drafted and primarily because of the word "or" which appears at the end of 4[2][b][ii]. He concludes that only position-based employees may be reclassified under paragraph 4[2][b]. He further suggests that only paragraph 4[2][c] is applicable to these research scientists wherein it specifically refers to "qualifications of incumbents".

To further emphasize that there was an error in the delegation of authority, he refers to a letter dated January 23, 1995, subsequent to the appointments, which appears to rectify the error. The last paragraph of this letter reads as follow:

The Commission is therefore pleased to delegate to you the authority stipulated in paragraph 4[2][c] of the Public Service Employment Regulations, 1993. As of this date, this letter will serve as your authority for the appointment of Research Scientists [SE-RES] based on standards of competence within Natural Resources Canada. This new authority will be reflected in the Staffing Delegation and Accountability Agreement when it is revised.

Counsel for the Respondent urges me to accept that the decision of the Public Service Commission Appeal Board was correct and that appointments in this particular category can be made pursuant to regulation 4[2][b][iii]. It is submitted that in this particular case, the Department reclassified group levels upward before appointments were confirmed and, looking to the words of paragraph 4[2][b] for support of this argument, counsel urges me to interpret the regulation as follows: [b] "Where an employee is to be appointed to the employee's reclassified position" and subparagraph [iii] "... there are no similar position in the same occupational group and level within the same part of the organization". She submits that there was no similar position at this occupational level and, therefore, the Department could proceed under that subsection to create a new classification and then promote.

She also disagrees with the Applicant that paragraph 4[2][b] of the Regulations can only be applied when determining promotions and reclassifications for position-based employees and further submits that the Applicant's position that regulation 4[2][b] requires two pre-conditions to be met before promotion can occur, is erroneous.

May I say from the outset that I disagree with both parties as to the interpretation of paragraph 4[2][b]. It was suggested that the regulation has been poorly drafted. Nevertheless, I am convinced that under paragraph 4[2][b] only one of the three events enumerated must occur for a position-based employee to be promoted. The language used in the Regulations is unequivocal. The use of the word "or" in subparagraph 4[2][b][ii] is a clear indication of Parliament's intention that only one ofthe provisions of the subparagraphs must be met in order to promote an employee.

Furthermore, the letters directed to the individuals informing them that their group was reclassified before their promotions came into effect does not, in my view, allow the promotions to be protected under subparagraph 4[2][b][iii].

First of all, there was a specific direction in the memorandum of October, 1993, in which it was emphasized that if a research scientist was to be promoted to the next higher classification, while remaining in the same position, "the position classification ... will be adjusted ... to ensure classification coincide between the incumbent and the position".

It has been agreed from the outset that in this particular case we are not dealing with position-based employees but rather incumbent-based scientists whose classification depends solely on their duties and their performance. The French version of regulation 4[2][c] is concise: "les postes sont classifiés selon les qualités des titulaires". Paragraph 4[2][b] depends only on the tasks performed by the employee while 4[2][c] depends on the qualifications as well as performance of the incumbent.

It was also submitted by the Respondent that even should I determine that there was no authority within the Department, knowing that the Commission can promote retroactively to validate the reclassifications, the Court can exercise its discretion not to intervene when there has been no consequential error of law.

In submitting this proposition, counsel for the Respondent relies on the case Canadian Cable Television Association v. American College Sports Collective of Canada, [1991] 3 F.C. 626 [C.A.]. In that particular case, the Court of Appeal determined that the audi alteram partem principle had not been violated and that an inconsequential error committed by a board does not mean the decision should be set aside if no injustice has resulted.

Such is not the case before me. It is not a matter of fairness or whether the issue is moot. The question here is whether the Department had the jurisdiction to reclassify and promote. Whether the impugned decision is fair or moot has no significance if the Department had no jurisdiction to make it.

I am satisfied that the delegation of authority in this particular instance was deficient and the reclassifications and promotions by the Department in March of 1994 are void ab initio. The decision of the Public Service Commission Appeal Board rendered by Chairperson Joanne Archibald on March 16, 1995 is hereby set aside. No order as to costs.

P. Rouleau, Judge

Ottawa, Ontario

January 18, 1996