Digests

Aplin v. Canada (Attorney General)

T-1025-03

2004 FC 691, Mosley J.

11/5/04

21 pp.

Judicial review of Public Service Commission Appeal Board's (Appeal Board) dismissal of applicants' appeal of appointment without competition of David Coupar, made pursuant to Public Service Employment Act (Act), s. 21-- Applicants, investigation and control officers with Human Resources Development Canada (HRDC), appealed appointment without competition of David Coupar to indeterminate position of Chief, Investigation and Control (PM-05) of HRDC--Two-member selection board assessed Mr. Coupar's qualifications, found him qualified--No indication considered any other employees' qualifications-- After applicants filed their s. 21 appeals, selection board assessing both applicants with understanding acting in compliance with Attorney General of Canada v. Greaves, [1982] 1 F.C. 806 (C.A.)--Finding applicants failed to demonstrate met experience requirements--In so concluding, selection board relying on reference for both applicants provided by district manager who had only remote supervisory contact with them--Also relying on outdated performance review and evaluation appraisals--Appeal Board concluding selection board performed duty to assess relative merit of candidates in accordance with merit principle, although some weaknesses in tools used--Irregularities admitted and noted by Appeal Board, namely, sparse reference provided by manager not having direct supervisory role in relation to applicants, failure to give applicants chance to present more detailed resumés, failure to solicit references from applicants' immediate supervisor, use of dated performance appraisals, raising real doubt as to whether merit principle respected-- Appeal Board's determination merit principle not violated cannot stand--Appeal Board finding process followed by selection board in conducting assessments of applicants after launched appeals not contrary to PSEA--Federal Court of Appeal in Greaves confirming appointments made without competition remain subject to merit principle--Greaves not mandating "after-the-fact" assessments must be done, but implying such will usually be the case--To extent Appeal Board viewed procedure employed by HRDC and selection board required by Greaves, it erred--Also, Greaves not distinguishable because considered s. 21 as previously worded--Current provision (s. 21(1.1)) providing less onerous route of appeal, but not changing fact selection board may not be aware, until after certain individuals have filed appeals, that certain candidates deserve to be considered, evaluated in accordance with merit principle for position staffed without competition--Where such subsequent assessment done, applicant's right to appeal would continue and Commission must ensure disclosure requirements with regard to appeal are met with regard to any new evaluation or assessment completed by selection board--If newly identified individual found to be more meritorious than originally selected person, new appeal rights would come into existence--Selection Board not erring in completing assessment of applicants' qualifications after they had initiated their appeals--HRDC and selection board erred in attempting to correct itself with regard to second, subsequent assessment of applicants' experience for PM-05 position--Allowing selection board to self-correct itself, beyond first evaluation of applicants after their identification as possible, qualified candidates, would bring about array of practical problems related to their appeal --Subsequent assessments would engender problems with fairness in providing disclosure, not to mention added delay in getting to Appeal Board stage--Given distinct, separate functions of selection board and Appeal Board, as well as need for finality to selection process, process followed herein contrary to law--Application allowed--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15).