A-378-80
Attorney General of Canada (Applicant)
v.
Normand Loiselle (Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, September 25 and October 31, 1980.
Judicial review — Public Service — Application to set aside
decision of Appeal Board ordering Public Service Commission
to ignore recommendation to release respondent employee for
incompetence — Whether Board exceeded its authority in
deciding that recommendation should not be acted upon for
the sole reason that the Deputy Head did not first consider
possibility of transfer rather than release — Respondent's
incompetence was not questioned — Application allowed
Public Service Employment Act, R.S.C. 1970, c. P-32, s. 31 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
R. W. Côté for applicant.
J. D. Richard, Q. C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application under section 28 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, was heard at the same time as the similar
application in No. A-334-80, The Queen v.
Larsen.'
At the hearing counsel for the parties submitted
that for all practical purposes the two cases were
similar and raised the same issue. If such were the
case, it would be possible to dispose of this case by
referring to the decision in Larsen. For the reasons
given in support of that decision, the instant
application should be granted and the decision a
quo quashed. However, a careful reading of the
record suffices to show that, despite their similari-
I
See supra at page 199.
ty, there is a major difference between these two
cases.
It is true that the two cases show several points
of similarity. Both take issue with the validity of a
decision made under section 31 of the Public
Service Employment Act, R.S.C. 1970, c. P-32, by
a Board established by the Public Service Com
mission. In both cases the Board heard the appeal
of an employee whose release had been recom
mended on the ground of incompetence. Moreover,
in both cases, although there was no doubt con
cerning the incompetence of the employees in
question, the Board did not dismiss the appeal.
However, whereas the Board in Larsen ordered
the Commission to transfer the incompetent
employee, the Board in the decision a quo allowed
the employee's appeal and ordered the Commis
sion to ignore the recommendation of the Deputy
Head. The Board decided in this way since it felt
that the recommendation for release was not
reasonable because it had been made by the
Deputy Head without his having first considered
the possibility of a transfer rather than release.
The issue raised in the instant case is accordingly
whether a board hearing an appeal from a recom
mendation for release on the ground of incompe
tence may allow the appeal and decide that this
recommendation should not be acted upon for the
sole reason that the deputy head who made it did
not consider (or sufficiently consider) the possibili
ty of transferring the incompetent employee rather
than releasing him.
In order to answer this question in the affirma
tive, it is necessary to assume, as the maker of the
decision a quo seems to have done, that section 31
of the Public Service Employment Act imposes on
the deputy head an obligation to consider seriously
the possibility of a transfer rather than release
before he recommends the release of an incompe
tent employee. I am unable to give this interpreta
tion to section 31, which, in my opinion, merely
lays down that the recommendation for the release
or transfer of an incompetent employee must be
based on the opinion of the deputy head that the
employee is incompetent and that he should be
transferred or released, depending on whether the
deputy head recommends transfer or release.
There is nothing in section 31, as I understand it,
that requires the authorities in a department,
before recommending the release of an incompe
tent employee, to consider whether it would be
possible to appoint him to another position rather
than releasing him. This seems reasonable to me.
The release of an incompetent employee is not a
disciplinary measure. If an employee is incompe
tent, he should leave his position. It appears to me
that it is for the authorities in a department, and
for them alone, to decide whether an incompetent
employee should be released or appointed to
another position.
For these reasons I would grant the application,
quash the decision a quo and refer the matter back
to the Board for decision on the basis that, under
section 31 of the Public Service Employment Act,
a board hearing an appeal from a recommendation
for release on the ground of incompetence does not
have the authority to decide whether or not the
employee found to be incompetent should be
released.
* * *
RYAN J.: I concur.
* * *
LE RAIN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.