Roberts v. Canada ( Attorney General )
A-407-97
Décary J.A.
9/3/99
5 pp.
Issue whether six-month assignments of two employees to other positions within same department appointments within meaning of Public Service Employment Act, s. 21-Functions basically same, assignments did not result in promotion and employees continued to receive same salary-Assignments challenged by two unsuccessful candidates under s. 21-PSC Appeal Board declined jurisdiction on basis assignments at issue did not amount to appointments and therefore not open to challenge under Act, s. 21-Trial Division dismissed application for judicial review thereof-Appeal from that decision-Appellants submit unless department uses process of deployment defined in Act, s. 34.1 or process of acting appointment defined in Public Service Employment Regulations, 1993, s. 2(1), any lateral move of employee within department through process of assignment is appointment subject to right of appeal-Appeal dismissed-While process of assignment nowhere defined in Act or Regulations, process legitimate and inherent management device already recognized by courts and implicitly affirmed in amendments made to Act and Regulations in 1993-Department may move employee from one position to another, on temporary basis, without having to deploy him-If no right of appeal granted where employee deployed, i.e., where moved from one position to another, gains incumbency in position to which deployed and therefore assumes classification level of other position, a fortiori can it be assumed that no right of appeal granted where employee merely assigned, i.e., where moved temporarily from one position to another, does not gain incumbency in position to which assigned, does not assume classification level of that other position and expected to return to original position-Factors to be examined by Appeal Board whether assignment of such significant and indefinite duration to be presumed to place occupant of position at distinct advantage in any subsequent selection process, and whether such significant and substantial change in functions requiring additional or special qualifications such that assignment tantamount to new position-Assignments herein ordinary assignments bearing none of characteristics attributed by case law to disguised appointments-Fact closed competition held not sufficient to transform assignment into appointment: Act, s. 21(1)-Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18. s. 15), 34.1 (as enacted by S.C. 1992, c. 54, s. 22)-Public Service Employment Regulations, 1993, SOR/93-286, s. 2(1).