Stout

Parties/Partis: Stout, Dorothy v. The Appeals Branch, Public Service Commission

Court # Cour: A-924-84

Judgment/Jugement Date: 1985-06-17

Pratte, Marceau, MacGuigan

Heard: June 17, 1985

Reasons for Judgment of Pratte, J. delivered from the Bench on June 17, 1985; and concurred in by Marceau, J; Dissenting Reasons of Mccuigan, J. delivered from the Bench on June 17, 1985.

Pratte J.:

The applicant's main contention, and the only one on which we heard counsel for the respondent, was that the Public Service Commission acted illegally in trying, as it did, to correct the irregularity that tainted the competition which had led to the appointment of Ms. Burns and Roth.

In support of that contention, counsel first argued that the decision of the first Appeal Board upholding the applicant's appeal against the appointment of Ms. Burns and Roth had the effect of voiding in its entirety the competition that had resulted in those appointments so that in this competition, being entirely void, had to be completely recommenced. I do not agree. A decision upholding an appeal under section 21 of the Public Service Employment Act does not have such an effect; it merely obliges the Commission, first, to revoke the appointment or to refrain from making it and, second, to take the necessary steps to correct the irregularity that vitiated the selection process.

Counsel for the applicant also argued that the fact that the second selection board had used a job description different from the one which the first selection board had used, showed that the Commission, instead of trying to correct the irregularities that had vitiated the competition had, in effect, conducted a new competition for a new position and had illegally restricted the participation in that new competition to the four candidates who had taken part in the first competition.

That second contention must also, in my view, be rejected. The record shows clearly that the intention of the Commission was not to hold a new competition but merely to correct the irregularity that had been found to exist in the competition which had resulted in the appointments of Ms. Burns and Roth. In so doing, reference was made to a job description different from the one that should have been used. True, that was an irregularity; if the second selection board had acted regularly, it would have used the same job description as the first selection board. However, I am of opinion that this irregularity is of no consequence because the differences between the two job descriptions were not such, in my view, as to support the inference that the use of the wrong description might have influenced the outcome of the competition.

I would, for these reasons, dismiss the application.

Louis Pratte, J.

I concur. Louis Marceau

MACGUIGAN, J.:

I take a different view of this case from my colleagues.

The summary of the job description in the first competition reads as follows:

Under direction, undertakes legal assignments that will provide training and experience for employment at a higher level in the Law Group.

This is a description of a very junior position - an apprenticeship position, as it were. The comparable job description for the second competition is as follows:

Conducting independently or assisting other counsel in conducting litigation for or against the Crown or its servants or agents in matters involving issues of public law and private law.

This is in terms a description of a different job, one requiring significantly more independence in function. Since the respondent has adduced no evidence with respect to the change in description, we have no choice but to compare the two jobs on their face values alone.

It is true that, because of the lack of a statement of qualifications, this Court on December 5, 1983, in effect sent the matter back to the drawing board, and the respondent has here contended that the new statement of qualifications led to a revised job description. However, I believe the proper sequence is the other way around, with the statement of qualifications being drafted in the light of the exact terms of the job description. The major change in the job description therefore convinces me that this was no longer substantially the same public service competition because it was no longer for the same job.

It may be that the applicant suffered no disadvantage as a result. But as my colleague, Mr. Justice Pratte, wrote in Charest v. Attorney General of Canada, [1973] F.C. 1217, 1221,

If a right of appeal is created by section 21 [of the Public Service Employment Act], this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle.

A competition held for a more senior job might well have attracted other qualified competitors and led to entirely different results. We must not measure the disadvantage only to the applicant but also to other potential competitors. This is not a mere irregularity affecting only the applicant.

I would therefore allow the application and return the matter to the Board for disposition in accordance with these reasons.

Mark R. MacGuigan, J.