Preece et al.

Parties/Partis: Arthur Preece and Ramnarine Barran v. Public Service Commission Appeal Board

Court # Cour: A-390-80

Judgment/Jugement Date: 1981-05-04

RYAN J.:

This is a section 28 application to review and set aside a decision, dated May 28, 19890, by a Public Service Commission Appeal Board constituted to hear appeals brought by the applicants, Mr. Preece and Mr. Barran, pursuant to section 21 of the Public Service Employment Act.

A closed competition was held in respect of a position in Canada Post, Fleet Maintenance, Transportation, Metro Toronto, Ontario Postal Region. The position was described as Maintenance Supervisor and Instructor (GL-ELE-4 C3) (I will refer to it as "the C3 position"). The notice of the competition did not indicate that other positions of a similar nature and level or at a lower level might be filled from the competition.

An eligible list was established. Later an opening occurred for a position described as GL-ELE-4 C2 ("the C2 position"); a person who had been placed on the eligible list established for the C3 position was selected. This selection is the subject matter of this application. Mr. Barran was also on the eligible list, but was not selected because he was lower in rank than the person selected. Mr. Preece's application for the position had, it appears, not been filed in time, but he nonetheless appealed the appointment.

The disposition of the application depends on the interpretation of section 18 of the Public Service Employment Act, which provides:

18. Where an appointment under this Act is to be made to a position by competition, the appointment shall be made from an eligible list established for that position or for positions of a similar occupational nature and level, but where such list is exhausted, the appointment may be made from an eligible list established for positions of a similar nature at a higher level.

Section 18 requires that where, as here, an appointment is to be made to a position by competition, it must be made from an eligible list. Section 17 of the Act (see note 1 below) requires that an eligible list be established after a competition is held. It is from such an eligible list that section 18 requires an appointment to be made. But section 18 provides alternatives. An appointment to a position may also be made from an eligible list established "...for positions of a similar occupational nature and level." And, where an eligible list established for the position to be filled or for positions of a similar occupational nature and level "is exhausted", then - and in my view only then - "...the appointment may be made from an eligible list established for positions of a similar occupational nature at a higher level."

[note 1: Subsections 17(1), (2) and (3) of the Public Service Employment Act provide:

17. (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligible lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.

(2) An eligible list is valid for such period of time as may be determined by the Commission in any case or class of cases.

(3) When establishing an eligible list in the case of a closed competition, the Commission shall place the qualified candidates thereon in order of merit.]

The ground taken by the applicants in their appeals to the Appeal Board was that the competition had been held to fill a C3 position, no indication having been given that C2 positions might also be filled on the basis of the competition which was to be held. Thus, it was submitted, the C2 position was filled without there having been a competition for it. Thus, it was argued, was fatal to the appointment.

Before the Appeal Board, the case of the Department was that the appointment to the C2 position had been made from an eligible list established for a position, the C3 position, which was similar in nature to the C2 position, but at a higher level, and was thus authorized by the closing words of section 18.

The Appeal Board adopted the submission of the Department and dismissed the appeals. The Board decided that the C3 and C2 positions were similar in nature, but that the C3 position was at a higher level. Thus the appointment was authorized by the closing words of section 18. The Board recognized that no eligible list had been established for the C2 position. Nonetheless, the Board stated: "...when no eligible list exists, the eligible list is, in fact, 'exhausted'."

Counsel for the applicants submitted that this constituted error. In my view, it was a misrepresentation of the closing words of section 18 to hold that the words can justify resort to an eligible list established for positions of a similar occupational nature but at a higher level where no eligible list has been established for the position to be filled or for positions of a similar nature and level to the position to be filled: a list can be said to be exhausted only if it existed.

But counsel for the Deputy Attorney General, in support of the decision actually reached by the Appeal Board, made a submission which appears to me to be inconsistent with the position taken by the Department before the Appeal Board. The submission was, as I understood it, that the C3 and C2 positions were positions of a similar occupational nature and level and thus, by virtue of the first alternative in section 18, an appointment to the C2 position could be made, without further competition, from the eligible list prepared as a result of the C3 competition. Counsel argued that the C2 and C3 positions were similar in nature; and, indeed, I would note that the Appeal Board, after considering the submissions on behalf of the representatives of the Department and of the appellants, did so determine. Counsel then referred to the position designations, GL-ELE-04 (C3) and GL-ELE-04 (C2), and submitted that the "4" in each designation was used, and was generally understood in the Public Service to be used, to designate the level of the position, and that the C3 and C2 designations were merely used to indicate sub-categories within the same level. The positions were, he submitted, similar in nature and at the same level, and thus were similar in nature and level. This being so, by virtue of the first alternative provided in section 18, the appointment was made in accordance with the law.

I may say that, if I were satisfied that the positions were similar in nature and level, I would be of opinion that the appointment could properly have been made as it was even though the notice of the competition had not in terms specified that appointments might be made to C2 as well as to C3 positions or that successful candidates might be eligible for appointment to similar positions. Section 18 provides that an appointment may be made to a position from an eligible list established for a position which is of a similar nature and level. I take it that the need for a competition is satisfied by the similarity in nature and level between the position for which the competition was held and the position to which the appointment is made.

My problem is, however, in being satisfied, on the basis of the record before us, that the designations of the positions do have the significance counsel seeks to attach to them and in being satisfied that they are understood as having or should reasonably be understood as having this significance by affected members of the Public Service.

Because of the Appeal Board's error in law in interpreting the closing words of section 18 and because I am far from being certain that the Board would have dismissed the appeals on the basis of the first alternative in section 18, I would grant the section 28 application and set aside the decision under review, I would direct a new inquiry to be conducted in respect of these appeals, the inquiry to be conducted with these reasons in mind. This, in my view, is necessary having in mind that the issues raised by reliance on the first alternative in section 18 could best be dealt with on the basis of a full hearing. The new inquiry may be held by the same Appeal Board or by another Appeal Board appointed for the purpose.

An issue was also raised by counsel for the Deputy Attorney General concerning the status of each of the applicants to appeal to the Appeal Board. It was submitted that Mr. Barran lacked status to appeal because, having been placed lower on the eligible list than the successful candidate, he was not adversely affected by the appointment. I am of the view that this objection is not sustainable. Mr. Barran, though placed on the eligible list, was an unsuccessful candidate within the meaning of section 21 of the Act in that he was not selected for appointment to the vacant position, and his appeal was against the selection. It was also submitted that Mr. Preece was not eligible to appeal because he had not filed his application to participate in the competition in time. I would leave this question to the Appeal Board on the new inquiry to be answered on the basis of the facts as developed in the new inquiry. I would merely indicate that, ordinarily, a person who does not submit his application within the time stipulated for a competition can hardly be considered as having been a candidate.

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LE DAIN J. concurred.

KERR D.J. concurred.