T-3005-74
H. M. B. Millward, D. H. McMillan, E. W.
Murphy and A. D. Wigmore (Applicants)
v.
Public Service Commission and Evelyn Cooper-
stein (Respondents)
Trial Division, Cattanach J.—Ottawa, August
22; September 9, 1974.
Applications for prerogative writs—Public Service—Com-
petition—Unsuccessful candidates appealing to Appeal
Board—Contending that Board must hold private inquiry—
Board deciding on public hearing—Denial of adjournment
requested by appellants—Withdrawal of appellants from
hearing—Board concluding inquiry—Rulings of Board
upheld—Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 21—Federal Court Act, ss. 18, 28.
The applicants were four of the unsuccessful candidates
in a competition for promotion held by a selection board. On
appeal to an Appeal Board established under section 21 of
the Public Service Employment Act, the applicants contend
ed that such an inquiry must be held in private and declined
to advance specific reasons for their position. The Board
decided to proceed in public. When their request for an
adjournment was denied, the applicants withdrew. The
Board concluded its inquiry but, on being served with notice
of the present motion, refrained from pronouncing a deci
sion. The application sought declaratory relief, along with
relief by way of certiorari, prohibition and mandamus,
against the respondent Commission and the Board (the
respondent Cooperstein).
Held, the application, in so far as it sought the quashing of
the Board's rulings, as to privacy of hearing and adjourn
ment, was excluded from the jurisdiction of the Court of
Appeal under section 28 of the Federal Court Act and within
the jurisdiction of the Trial Division. The Board of Inquiry
must be regarded as quasi-judicial in nature. The Public
Service Employment Act had by necessary implication con
ferred on the Board a discretion with respect to holding the
inquiry in public or in private. The appellants' view that the
inquiry must be held in private, which was erroneous and
prompted them to leave the hearing, was not a justifiable
basis for holding that they had been deprived of the oppor
tunity of presenting their case by the Board's refusal to
grant an adjournment. The rulings of the Board were valid
and the motion was dismissed.
In re Anti-Dumping Act and in re Danmor Shoe Com
pany Ltd. [1974] 1 F.C. 22; Attorney General of
Canada v. Cylien [1973] F.C. 1166, Johnson & Co. v.
Minister of Health [1947] 2 All E.R. 395; Scott v. Scott
[1913] A.C. 417; Ex parte Norman (1915) 114 L.T.
232; McPherson v. McPherson [1936] A.C. 177 and
Hearts of Oak Assurance Company, Limited v. Attorney
General [1931] 2 Ch. D. 370, applied. MacDonald v.
Public Service Commission [1973] F.C. 1081, discussed.
MOTION.
COUNSEL:
Hon. Lionel Choquette, Q.C., and D. Dehler
for applicants.
P. Evraire and P. Bétournay for
respondents.
SOLICITORS:
Vincent, Choquette, Dehler & Dagenais,
Ottawa, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered in English by
CATTANACH J.: This matter is brought by way
of a notice of motion by the applicants seeking a
declaration that a board established by the
Public Service Commission pursuant to section
21 of the Public Service Employment Act,
R.S.C. 1970, c. P-32, shall hold the inquiry
contemplated thereby in private or, alternative
ly, that such an inquiry shall be held in public
only if the unsuccessful applicants for selection
to an appointment within the Public Service
who appeal against an appointment to be made
or the deputy head concerned, or their respec
tive representatives, consent thereto.
In addition to the declaratory relief so sought,
the applicants also seek an order prohibiting the
Board from continuing or concluding the inqui
ry, (which order would be abortive since the
inquiry was concluded) and from prohibiting the
board from making a decision consequent upon
the inquiry which was held in public.
The applicants also seek an order by way of
certiorari, (1) quashing the proceedings, which I
am inclined to think, without deciding the
matter, is properly the subject of an application
for review to the Court of Appeal under section
28 of the Federal Court Act, (2) quashing the
ruling of the Board made during the course of
the inquiry that the matter would be conducted
in public, and directing that the inquiry be heard
in camera, and (3) quashing the ruling made by
the Board refusing to grant an adjournment to
the applicants pursuant to a request therefor in
order to permit the present motion to be made
to determine the questions in controversy and
pending the determination thereof. In my view,
these latter two matters, excepting the request
for a direction that the inquiry be held in public,
which I consider to be more properly the sub
ject of mandamus, are within the jurisdiction of
the Trial Division, as not being orders or deci
sions within the jurisdiction of the Appeal Divi
sion under section 28 of the Federal Court Act
(see In re Anti-Dumping Act and In re Danmor
Shoe Co. Ltd.' and Attorney General of Canada
v. Cylien 2 ).
Finally the applicants seek an order by way of
mandamus directing the Public Service Com
mission to convene another board to hear the
appeals of the applicants herein which shall not
include the person who constituted the original
Board.
The notice of motion requested two other
orders (1) an order for short notice, and (2) an
order that the service of the motion effected
constituted good and sufficient service. These
requests have been disposed of during the hear
ing, because the notice of motion was served
within the prescribed time and the respondents
acknowledged service thereof.
A competition was called for the promotion
of employees of the office of the Auditor Gen
eral of a certain classification to a higher clas
sification. This was a closed competition within
the meaning of the Public Service Employment
Act. There were fifteen candidates. A selection
board was convened and concluded that four of
the fifteen candidates met the qualifications
demanded. The other eleven candidates were
judged by the selection board not to meet all the
qualifications required.
The four applicants herein were among the
eleven candidates who were deemed not to be
[1974] 1 F.C. 22.
2 [1973] F.C. 1166.
qualified.
As was their right, the four applicants herein
appealed against the appointment of the four
successful candidates to a board to be estab
lished by the Public Service Commission to
conduct an inquiry into the matter in accord
ance with section 21 of the Public Service
Employment Act.
Miss Evelyn Cooperstein was appointed as
the Board to conduct that inquiry.
The inquiry began at 9:30 a.m., August 14,
1974, at which the four applicants were present
together with their counsel and the deputy head
was represented by Mr. F. H. J. Tippins and Mr.
G. J. Bourdeau, the latter of whom had been
chairman of the selection board.
Counsel for the applicants observed that there
were numerous persons present in the hearing
room, many of whom he assumed had no direct
interest in the appeals to be heard but were
there merely as spectators. While this fact was
not known to the Board, or to counsel for the
applicants, at that time, it has subsequently
transpired that the persons present in the audi
ence were the four successful candidates who
undoubtedly had a direct interest in the inquiry
and I assume might have been potential wit
nesses, the members of the selection board and
who likewise may have been potential witnesses
and appeals officers in training. The fact that
some of those persons might be witnesses does
not, of itself, entitle them to be present in the
hearing room because there are circumstances
when it might be expedient to exclude wit
nesses. However, no one had the foresight to
inform counsel for the applicants or the Board
who the persons present were and, accordingly,
both counsel and the Board proceeded on the
basis that the audience was composed of mem
bers of the public with no relationship to the
inquiry. Counsel for the applicants did not move
to exclude witnesses.
There is no provision in the Public Service
Employment Act nor in the regulations enacted
pursuant to the authority contained in the stat-
ute covering the attendance of appeals officers
in training such as is the case in Courts Martial
where officers under instruction comprise part
of the court which is required to be heard in
public in any event.
Accordingly, both counsel for the applicants
and the Board considered that the inquiry was
held in public. I accept that premise and the
contrary was not advanced before me.
On observing the large audience at the inqui
ry, counsel moved that the inquiry be held in
private. More specifically his motion was that
the observers should be excluded.
The ground advanced for so moving was that
an inquiry under section 21 of the statute is by
presumption of law required to be in private. It
was counsel's position before the Board that
unless the inquiry is stated in the statute or
regulations thereunder to be public, then the
presumption is that it be private. He buttressed
that argument by stating that the Federal Court
"has repeatedly developed the notion of the
merit principle" and that the rating or selection
board is an arm of the Commission to safeguard
the true application of the merit principle.
A rating or selection board from its very
nature and function is conducted in private. It
assesses the relative qualifications of competing
candidates, I assume upon records of perform
ances, education, reports of superiors and the
like and in all likelihood, upon an oral interview
of the candidates and, eventually, arrives at a
list of the candidates ranged in the order of
merit. Depending on the number of appoint
ments available, the top candidates in a number
equivalent to the jobs available are successful
and those ranged below are unsuccessful. Clear
ly the function of a rating or selection board is
purely administrative and that is what I hold it
to be. This was not disputed in argument before
me.
However, before the Board, counsel contend
ed that an inquiry under section 21 was nothing
more than an extension of the function of a
rating or selection board, from which I assume
he meant that the inquiry was also an adminis-
trative function with no quasi-judicial attributes
and since the rating board was conducted in
private, the inquiry must be conducted likewise.
On her part, the single Appeals Officer who
constituted the Board announced that her
understanding of the policy of the Commission,
although not part of the statute or regulations
thereunder, was that inquiries under section 21
are "public" and further announced that she
would not exclude the public unless counsel for
the applicants advanced specific reasons for so
doing. Despite repeated invitations from the
Board to do so, counsel for the applicants was
adamant in his refusal to give specific reasons in
this particular case why the inquiry should not
be held in public but rather adhered to his
original position that the inquiry must be held in
private.
The upshot of the exchange was that the
Board ruled that the inquiry would be held in
public.
Counsel for the applicants had announced
that, if the board so ruled, the matter would be
brought before this Court for determination of
the question. The Board invited counsel to do
so.
When the Board ruled that the inquiry would
be held in public, counsel for the applicants then
requested an adjournment in order that the
matter might be brought before this Court for
determination.
This request for an adjournment for this pur
pose was opposed by the representative of the
deputy head who gave his opinion based upon a
document in his possession entitled Guide to the
Public Service Appeals System that the inquiry
is open to the public and proclaimed his confi
dence in establishing by evidence in an open
inquiry that the selections of the rating boards
were based on merit.
Counsel's request for an adjournment was
denied whereupon counsel and his clients left
the room and took no further part in the inquiry.
The Board then proceeded to conduct the
inquiry in public and received evidence from the
representatives of the deputy head in the
absence of the applicants and their counsel.
Counsel, true to his announced intention,
forthwith launched the present motion which
was served on the respondents herein the same
day as the inquiry, that is August 14, 1974.
While the Appeals Officer, who was the Board,
concluded the hearing of evidence that day, she
has refrained from making her decision upon
being served with the present notice of motion.
Thus from this controversy, there emerged
these basic and fundamental issues which I pose
for determination:
(1) (a) is it mandatory that an inquiry under
section 21 of the Public Service Employ
ment Act shall be held in private as con
tended on behalf of the applicants;
(b) is a board appointed under section 21
bound to conduct the inquiry in public; or
(c) does the board have a discretionary
power to conduct the inquiry either in
public or in private or partly in public and
partly in private, and
(2) was the inquiry conducted by the Board
in the absence of the applicants and their
counsel in the circumstances described above
voidable at the option of the applicants as
offending against the audi alteram partem
rule inherent in natural justice?
ef ore me, counsel for the applicants reiterat
ed his contention made before the Board that
the inquiry under section 21 of the Act is noth
ing more than an extension of the purely
administrative function of the rating board.
As authority for this contention, counsel
relied upon remarks made by the Chief Justice
in MacDonald v. Public Service Commission'
where he said at page 1085 and following:
To appreciate the true legislative purpose of section 21,
the situation in which it operates must be got into perspec
tive. The independent Commission whose function is to
make the merit system work is required to organize an
operation in which many different people apply selection
[1973] F.C. 1081.
methods and make appointments in all the different
branches of the Public Service throughout Canada. The
actual selection processes and appointments are not, and in
the nature of things cannot be, carried on by, or under the
immediate supervision of, the three members of the Com
mission. There is such a volume of such operations that
there are bound to be mistakes and any process of investi
gating to locate such mistakes must also be on such a scale
that it cannot be carried on by the three Commissioners
personally.
What section 21 contemplates, therefore, is that an unsuc
cessful candidate may "appeal" against an appointment or
proposed appointment and that, when there is such an
appeal, the Commission will establish a "board" to "conduct
an inquiry" with regard thereto. It is clear from the various
applications that have been made to this Court that, to
enable it to discharge this duty, the Public Service Commis
sion has set up an organization of Appeals Officers whose
task is to conduct section 21 inquiries. In my view, that is
what is contemplated by the statute and I see no incompati
bility at all between selection and appointment officers on
the one hand and appeals officers on the other hand all
operating under the authority of the Public Service Commis
sion. It must be remembered that the Commission is an
independent commission established to make the "merit"
system work and that the appointment function and the
appeal function are different stages of the "merit" system.
Under section 21 the subject matter of the inquiry to be
made by the Appeal Board is not an issue between the
appellant and the Commission, nor is it a /is in respect off
which the Commission has a position or a decision to defend
against the complaint of the appellant. The Commission's
sole interest in the matter is to ensure that the "merit"
system is working as it ought to work.
In my opinion the extract quoted is not au
thority for the proposition for which counsel
cites it.
The Chief Justice was directing his mind to
the issue whether a board so set up by the
Commission offends against the principle that
no person shall be the judge in a cause to which
he is a party. What he was saying, in effect, was
that the Commission is not a party to the cause.
This is far different from saying that an
"appeal" board is nothing more than an exten
sion of the administrative function of a rating
board.
He concluded by saying:
I am satisfied, therefore, that the mere fact that the
Boards set up under section 21 are composed of members of
the Public Service Commission staff is not sufficient to
invalidate their decisions... .
In my opinion the contention on behalf of the
applicants that the Board's function is solely
administrative and accordingly should conduct
the inquiry in private is untenable.
Section 28 of the Federal Court Act provides
that the Court of Appeal has jurisdiction to hear
and determine an application to review and set
aside a decision or order made by a federal
board, commission or tribunal on specified
grounds " ... other than a decision or order of
an administrative nature not required by law to
be made on a judicial or quasi-judicial basis".
The quoted language precludes the Court of
Appeal from reviewing a decision of an adminis
trative nature. There have been innumerable
instances where the Court of Appeal has enter
tained applications to review decisions of an
appeal board established by the Public Service
Commission under section 21 of the Act and the
fact that the Court of Appeal has entertained
such applications affords a complete answer to
the contention that the decision of such a board
is administrative only. I do not accept the con
tention that the question of the jurisdiction of
the Court of Appeal was not brought to its
attention. The Court of Appeal is well aware of
the statutory limitation on its jurisdiction.
Section 21 of the Public Service Employment
Act reads:
21. Where a person is appointed or is about to be appoint
ed under this Act and the selection of the person for
appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate,
or
(b) without competition, every person whose opportunity
for advancement, in the opinion of the Commission, has
been prejudicially affected,
may, within such period as the Commission prescribes,
appeal against the appointment to a board established by the
Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their repre
sentatives, are given an opportunity of being heard, and
upon being notified of the board's decision on the inquiry
the Commission shall,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
This section provides that an unsuccessful
candidate in a closed competition, as this com
petition was, may appeal against the appoint
ment of a successful candidate to a board estab
lished by the Commission. That board is
required to conduct an inquiry. The person
appealing and the deputy head concerned must
be given an opportunity to be heard. The board
then makes a "decision" on the inquiry and that
decision is implemented by the Commission.
While there is not a lis inter parties in the true
sense of that term, there is, nevertheless, a
contest between two parties. The deputy head is
before the board to justify that the selection of
the successful candidate was on the basis of the
merit system and the unsuccessful candidate is
present to establish that this was not the case.
Such situation has been described and estab
lished by authority as a quasi -lis between quasi-
parties. (See Johnson & Co. v. Minister of
Health 4 )
There is no doubt, therefore, that the inquiry
here in question must be characterized as
quasi-judicial.
The question which follows on this conclu
sion is: must such inquiry be conducted in
public or may it be conducted in private?
In Court of Law and Justice, that is the courts
of the land in the true sense, the rule is open
court. Open court is the palladium of liberty.
This is stated by Lord Shaw in classic terms in
Scott v. Scotts where he forcibly adduces Ben-
tham and Hallam as authorities in favour of the
principle that judicial decisions should be con
ducted with as much publicity as possible.
Closed court is the exception, a concession to
reason in certain circumstances.
Lord Haldane said in Scott v. Scott (supra) at
page 435:
If there is any exception to the broad principle which
requires the administration of justice to take place in open
Court, that exception must be based on the application of
some other and overriding principle which defines the field
° [1947] 2 All E.R. 395.
5 [1913] A.C. 417 at 476-478.
of exception and does not leave its limits to the individual
discretion of the judge.
To justify the exception to open court no
principles can be said to have emerged which
are universally accepted.
Two principles have- been advanced in the
reasons of outstanding judges who have dealt
with the question.
One is that the public will be excluded when
that is necessary in order to secure that justice
is done. (See Viscount Haldane and Lord Lore-
burn in Scott v. Scott (supra)).
Lush J. said in Ex Parte Norman 6 :
... a Court has no power to hear a case in camera except
where justice cannot be done otherwise.
The second principle is that the court only
hears cases in camera in exceptional classes
established by judicial decisions and by statute.
I take it from the authorities that the follow
ing are the rules of common law:
(1) the fundamental rule is open court;
(2) the court may hear an application for trial
in camera where justice cannot be adminis
tered otherwise;
(3) the court may hear matters in camera in
specific cases,, such as when a statute so
provides,' wards, lunacy, secret processes and
keeping order;
(4) the court has no power at common law,
beyond these exceptions, to hear cases in
camera and has no arbitrary discretion; it
does not have such power in divorce or nulli
ty proceedings; (See McPherson v.
McPherson')
(5) at one time the courts have exercised this
power to hear matters in camera on consent
of the parties but this has been doubted in
6 (1915) 114 L.T. 232 at p. 234.
7 [1936] A.C. 177 at 200.
Nagle-Gillman v. Christopher 8 and I think
overruled in Scott v. Scott (supra).
While it behooves a non-judicial body exer
cising judicial functions to conform to the prac
tice prevailing in courts of law, in so far as the
purpose for which those bodies were set up
permits, there is no requirement, nor have I
found any case and none was cited to me, that a
body of this nature need sit in public in the
absence of statutory direction to the contrary.
In some statutes there are express provisions
directing that proceedings be held in public and
in others there are express provisions that the
proceedings are to be held in private. However,
where a statute directs that an inquiry shall be
held but is silent as to the manner in which it
shall be conducted, then, in such a case, it
follows that the matter is left to the discretion
of the particular tribunal.
The Public Service Employment Act, particu
larly section 21 thereof, and the regulations
promulgated thereunder and which have the
force of the statute if intra vires of the statute,
are silent upon the inquiry being held in public
or in private.
The regulations ranged under the title
"Appeals" provide basically for the material to
be furnished the notice to be given and the
communication of the Board's ultimate decision.
I have previously outlined the content of
section 21.
These are the express procedural provisions
in the Act and the regulations having the force
of the statute.
The Board has complied with the express
procedural provisions and is the master of its
own procedure in respect of matters not
expressly covered.
However, there has been prepared by the
Public Service Commission a Guide to the
Public Service Appeals System. On page 4 there
of appears the headings "Conduct of the Hear
ing" and "Procedure", section 1 of which states
s [1876] 4 Ch. D. 173.
"Every hearing is open to the public". This
document is nothing more than what it purports
to be, that is a "guide". No doubt it is widely
circulated amongst those persons within the
Public Service who have occasion to deal with
these appeals such as appeals officers, depart
mental personnel officers and the like.
The Appeals Officer who conducted the
inquiry here under review was familiar with this
"Guide". She stated in paragraph 10 of her
affidavit filed in this matter that:
10. I took the position at the commencement of hearing
that the hearing should be open to the public in accordance
with the "Guide to the Public Service Appeal System"
issued by the Public Service Commission and dated July,
1973, a copy of which is attached hereto as Exhibit "J" to
this my Affidavit.
I was informed that this Appeals Officer,
while not a member of any bar, holds degrees in
both civil and common law. It is apparent from
the transcript of the hearing that she was knowl
edgeable. I do not think that she placed blind
reliance on this Guide. She said that it was her
understanding of Commission policy, although
not in the statute or regulations, that these in
quiries were public and she did not propose to
exclude the public unless given a specific reason
for doing so. This indicates that she was willing
to exercise a discretion to hear the inquiry in
private if given a satisfactory reason to do so.
Still later the representative of the deputy
head expressed his opinion that the hearing
must be open to the public obviously basing that
opinion on the statement in the "Guide". The
Appeals Officer correctly stated in reply that
this "Guide" "isn't part of the law".
This statement in the "Guide" is merely a
direction and if it purports to state the law it is
no more than a statement of what the author
thinks the law to be. The author does not have
the power to legislate on this subject matter
delegated to him. In my opinion, for the reasons
I have expressed above, it is not an accurate
statement of the law and is dangerously mis
leading bearing in mind that it is directed
primarily to persons without legal qualifications
and in that it purports to negative the discretion
vested in the Board.
Because there is no express provision in the
Public Service Employment Act requiring an
inquiry under section 21 to be held in public or
in private, accordingly resort may be had to the
statute as a whole. The obvious place to begin is
in section 21 itself. A section of a statute is to
be considered literally unless some other section
cuts down its meaning or the section itself is
repugnant to the purview of the statute. Section
21 is silent on the matter and so too are the
regulations. There are no other sections which
have a direct bearing on the matter nor do the
regulations.
It is plain that there is nothing in the statute
as a whole which can be said by necessary
implication to prescribe the holding of the inqui
ry under section 21 or any part of it either in
public or private. On the contrary, I think, the
Legislature has, by necessary implication, con
ferred on the Appeal Board a discretion with
respect to holding the inquiry in public or
private.
Counsel for the applicants contended that the
Chief Justice outlined the legislative purpose of
the Public Service Employment Act in MacDo-
nald v. Public Service Commission (supra). This
he did. I do not agree with the contention by
counsel for the applicants that this outline by
the Chief Justice suppOrts the proposition that,
because of that purpose so outlined, the statute
by necessary implication demands that an inqui
ry under section 21 shall be held in private. The
Chief Justice outlined the legislative purpose in
the context of the issue before him which was
that the Commission could not be a judge in its
own cause. He did so to illustrate that the
Commission was in no sense a party and he, in
effect, said that appeals officers, who are
employees of the Commission, stand in the
place of the Commission and are the instru
ments of the Commission. He saw no incompat
ibility in appeals officers operating under the
authority of the Commission and the fact that
they are employees does not invalidate their
decision on inquiries under section 21 of the
Act. This is different from the issue before me
which is whether the appeals officer shall hold
the inquiry in private or in public which was not
in issue before the Chief Justice and his remarks
have no bearing on the issue before me.
After a careful review of the Act as a whole,
as I have said before, I find nothing which by
necessary implication dictates that a section 21
inquiry shall be held in public or in private and I
find no repugnance in that result to the purview
of the statute.
The next basic issue which arises is whether
the inquiry, conducted by the Board in the
absence of the applicants and their counsel,
consequent upon her refusal to grant counsel's
request for an adjournment, makes the inquiry
voidable at the option of the applicants.
This issue has caused me great concern and
difficulty.
I accept as my initial premise that the myriad
decisions, orders or rulings which a tribunal
must make during the course of a hearing to
reach its ultimate decision, are procedural. I
have in mind such decisions or rulings as to
admissibility of evidence, objections to ques
tions put to witnesses and requests for
adjournments.
I fail to follow how a decision of this kind
adverse to one party justifies that party with
drawing from the hearing thereby depriving that
party of an opportunity to be heard. The remedy
available is by way of an attack on the ultimate
decision of the tribunal on the ground that there
was not a fair hearing with respect to which
such adverse decisions may well be factors.
In the present matter, counsel for the appli
cants took the position that the inquiry under
section 21 of the Act must be held in private.
The Appeals Officer held a contrary view but
she did make repeated efforts to induce counsel
for the applicants to advance specific reasons in
this specific case. I think it is clear that had
such reasons been advanced, the Appeals Offi-
cer was prepared to entertain them and inferen-
tially indicated her willingness, if she found the
reasons satisfactory, to exercise her discretion
and hold the inquiry in private but there was no
assurance that this result would follow.
Counsel for the applicants steadfastly refused
to advance specific reasons but maintained his
initial stand that the inquiry must be held in
private which view I have found to be
erroneous.
The refusal to give specific reasons to hear
this inquiry in private resulted in the Appeals
Officer refusing to exercise her discretion and
so holding the inquiry. By reason of that failure
to give her specific reasons to do so, she ruled
that the inquiry would be held in public.
Faced with this adverse ruling, counsel for
the applicants then requested an adjournment in
order that the question whether the inquiry must
be held in private might be judicially deter
mined. When that request was refused, the
applicants and their counsel withdrew.
Counsel's position was that to proceed in
public would defeat the very purpose for which
he had moved that the inquiry be conducted in
private. However, I cannot refrain from point
ing out that he had manoeuvred himself into
that position.
Neither can I refrain from observing that the
representative of the deputy head, who was
without legal qualifications and who was not
possessed of knowledge on the legal aspects of
the subject, was not helpful.
This representative, based on the "Guide",
took the position that the inquiry must be in
public. I have stated above, if that Guide pur
ports to be a statement of the law, it is both
inaccurate and misleading.
While a court of law does not have the power
to hear cases in camera by consent or on the
assurance of counsel, the same does not hold
true in the case of so-called administrative tri
bunals. In Hearts of Oak Assurance Company,
Limited v. Attorney General 9 Lord Hanworth
M.R. has said at page 393 that if the consent of
the parties is obtained a non-judicial body may
hold a hearing either in public or private.
The representative of the deputy head, having
proclaimed his confidence in the side he repre
sented indicated therefore that the question was
one of indifference to him. Had he been knowl
edgeable, astute and foresighted, he could have
resolved the matter simply by consenting to the
inquiry being heard in private. This he did not
do.
Similarly, he could have consented to the
requested adjournment. This he did not do
either. He knew full well that the question was
to be brought to the Federal Court for judicial
determination with expedition, which was done,
to which he had no objection (that he had no
objection to this is meaningless) yet he made
mention of the fact of the preparation done to
present evidence which indicates that he wanted
to proceed immediately. He incorrectly stated
that section 21 was not to protect the rights of
an unsuccessful candidate. The section specifi
cally states that every unsuccessful candidate
may appeal the selection for appointment. That
person's rights are affected and he is entitled to
test whether the successful candidate was
selected on the basis of superior merit.
It is axiomatic that unless a statute provides
otherwise, notice upon a party to be affected is
a condition precedent to the validity of proceed
ings. However, if notice is given to the party
and the party does not attend the proceedings,
that voluntary act does not vitiate the proceed
ings conducted in the party's absence.
I can see no fundamental difference in the
situation where a party does not attend a hear
ing pursuant to notice from the situation where
a party voluntarily leaves a hearing before its
conclusion because of adverse procedural rul
ings. I fail to see how that party can take the
position that he was denied the opportunity of
9 [1931] 2 Ch. D. 370.
presenting his case.
Certainly the applicants herein did not present
their case, they did not hear evidence adduced
by the representative of the deputy head and
they did not cross-examine any witnesses that
may have been called. They did not have the
opportunity to do so because of their own delib
erate act of leaving the hearing with knowledge
of the consequences. They knew the hearing
would be continued in public and in their
absence.
Counsel for the applicants held the view that
it was mandatory that the inquiry be held in
private and he was prepared to submit that view
for judicial determination. He also knew that
the Court might find that his view was errone
ously held. That is precisely what has happened.
In making the decision to leave the hearing,
counsel was aware of the possibility that this
could happen, as it has, and, therefore, when he
made the decision to abandon the hearing, he
voluntarily accepted that risk.
I do not regard counsel's view of the question
that the inquiry must be held in private, which
view I have found to be erroneously held, which
prompted him to leave the hearing with his
clients, is a justifiable basis for holding that the
applicants had been deprived of the opportunity
of presenting their case by the Board's refusal
to grant an adjournment.
I reach this conclusion with reluctance and
with hesitation because of the circumstances of
this particular matter.
The decisions to hold the inquiry in public
and to refuse the applicants' request for an
adjournment may not have been wise ones but it
cannot be said that the Appeal Board did not
have the discretion to make them. Equally so
the decisions of the applicants not to proceed in
public and withdrawing from the hearing, when
their request for an adjournment for a specific
purpose was denied, in my opinion were not
well founded for the reasons expressed above,
even though dictated by convictions honestly
held by them and their counsel.
In view of the conclusions I have reached the
only disposition I can make of this motion is to
declare that the refusal by the Appeal Board to
grant the applicants' request for an adjournment
was a decision validly taken and that, on the
true construction of the Public Service Employ
ment Act an inquiry under section 21 thereof
may be held at the discretion of the Board,
either in public or in private, or partly in public
and partly in private, and accordingly dismiss
the motion.
In the circumstances there shall be no order
as to costs.
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