Vorias

Parties/Partis: Jerry G. Vorias v. Department of External Affairs

Court # Cour: A-1196-83

Judgment/Jugement Date: 1984-12-18

REASONS FOR JUDGMENT:

PRATTE J.:

This section 28 application is directed against a decision of an Appeal Board dismissing an appeal under section 21 of the Public Service Employment Act. That appeal was brought by the applicant against appointments to FS-2 positions in the Department of External Affairs which had been made in the same manner as the appointments that were in question in the case of Lepage v. Department of External Affairs (Court No. A-913-83).

As in the Lepage case, the main argument of the applicant before the Board was that the competition which culminated in the proposed appointments was tainted by the failure of the Department to comply with section 4 of the Public Service Employment Regulations. As in the Lepage case, the Board rejected that contention. It found that the list of qualifications appearing in the Selection Standards prescribed by the Commission was "treated by the Department as the qualifying document or more precisely the statement of qualifications for selecting candidates at the FS-2 level." It also found that the Department had nevertheless failed to comply with section 4 of the Regulations since it had failed to prepare and publish a document entitled "Statement of Qualifications"; it concluded, however, that this irregularity was not sufficient to vitiate the competition.

In support of their application, counsel for the applicant raised one argument in addition to those that were discussed and rejected in the Lepage decision. That additional argument is that the Appeal Board erred in imposing on the applicant the onus of establishing that the absence of a statement of qualifications influenced the result of the competition. In my opinion, this argument is based on a wrong interpretation of the decision of the Board. While some passages of that decision are not free from ambiguity, I think that the Board did not rely on any rule concerning "onus" but merely concluded that the evidence before it did not show "that there was a real possibility that compliance with section 4(1) of the Regulations might have brought a different result in this competition". I cannot find fault with that conclusion.

I would dismiss the application.

Louis Pratte J.F.C.C.

I agree - M.R. MacGuigan

I agree - A.J. Stone