T-1828-88
Neil H. Keenan and Kimberley Monteith (Appli-
cants)
v.
Public Service Commission (Respondent)
INDEXED AS: KEENAN V. CANADA (PUBLIC SERVICE COMMIS
SION)
Trial Division, Denault J.—Ottawa, October 27
and December 16, 1988.
Public service — Selection process — Advancement prejudi-
cially affected — Commission declining to express opinion as
to whether opportunities for advancement prejudicially affect
ed since no "appointment" involved — Employee filling posi
tion for fixed term of short duration, after which returning to
former position — Within Commission's authority to decline
to express opinion, as Public Service Employment Act, s. 21(b)
involving two-step process — Necessary to first determine
whether appointment before expressing requested opinion —
Correctly deciding secondment not constituting appointment —
Exercise of management flexibility necessary for proper
administration of government department.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Public Service Employment Act, R.S.C. 1970, c. P-32,
s. 21.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Belisle et al. and Public Service Commission Appeal
Board (1983), 149 D.L.R. (3d) 352 (F.C.A.).
DISTINGUISHED:
Doré v. Canada, [1987] 2 S.C.R. 503; Canada (Attorney
General) v. Brault, [1987] 2 S.C.R. 489.
REFERRED TO:
Lucas v. Canada (Public Service Commission Appeal
Board), [1987] 3 F.C. 354 (C.A.); Blachford v. Public
Service Commission of Canada, [1983] I F.C. 109
(T.D.).
COUNSEL:
Andrew J. Raven for applicants.
R. P. Hynes and Marie-Claude Turgeon for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicants.
Deputy Attorney General of Canada for
respondent.
EDITOR'S NOTE
This decision has been reversed on appeal.
The judgment of the Federal Court of Appeal was
rendered on June 1, 1989. It will appear in a later
issue of the Federal Court Reports. Whether an
assignment or a secondment constitutes an
appointment is arguable and the answer will
depend upon the circumstances of each case. It
is not for the Commission to make that decision. If
put in issue, the question is to be decided by the
Appeal Board.
The following are the reasons for order ren
dered in English by
DENAULT J.: This is an application for certio-
rari to quash a decision of the Public Service
Commission (the. Commission) whereby it refused
to express its opinion as requested by the appli
cants on the question of whether or not their
opportunities for advancement had been prejudi-
cially affected by the appointment of a colleague,
and for mandamus directing the respondent to
render its opinion on that question, as required by
section 21 of the Public Service Employment Act,
R.S.C. 1970, c. P-32, and amendments thereto.
The applicants are customs inspectors PM-01,
Revenue Canada, Customs and Excise at Wood-
stock Road and St. Stephen, New Brunswick,
respectively. In December 1987, one of the five
Immigration Examination Officers (IEO) in the
Canada Immigration Centre at Woodstock Road,
obtained a 15-month leave of absence for personal
needs. The temporary vacancy in that IEO posi
tion was filled by the Canada Employment and
Immigration Commission (CEIC) by means of
what was described as a "secondment" of Ronald
B. Thornton from Revenue Canada, Customs and
Excise to the CEIC. This secondment commenced
on December 14, 1987 and is scheduled to termi
nate December 31, 1988.
The applicants appealed against their col
league's appointment under paragraph 21(b) of
the Act which reads as follows:
21. Where a person is appointed or is about to be appointed
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 Commis
sion to conduct an inquiry at which the person appealing and
the deputy head concerned, or their representatives, 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.
The applicants believed that the most meritori
ous candidate was not selected to fill the vacant
position in question and they therefore sought to
present their arguments before an appeal board
established by the Public Service Commission pur
suant to section 21 of the Act. As the process of
personnel selection which led to the assignment of
R. B. Thornton to the position in question was not
pursuant to a formal competitive process, it was
incumbent upon the applicants to obtain the
opinion of the Commission on the question of
whether or not their opportunities for advance
ment had been prejudiced by the appointment of
R. B. Thornton. The Commission, through an
investigator, marshalled all the facts and heard the
applicants' representations. On April 29, 1988, the
Commission rendered its decision respecting the
applicants' request for its opinion on the question
of opportunities for advancement. The decision
read as follows:
COMMISSION OPINION
The Commission will not express an opinion concerning wheth
er the opportunity for advancement of the requestors has been
prejudicially affected since the secondment of Mr. Thornton
does not constitute an appointment under the Public Service
Employment Act.
REASONS FOR THE OPINION
During this secondment, Mr. Thornton retains his position with
Customs and Excise while providing services in the Canada
Immigration Centre for a limited time.
This decision is under attack.
There are but two points in issue in this applica
tion: 1) did the Commission err in law and exceed
its jurisdiction when it ruled that the purported
secondment of R. B. Thornton in the position of
Immigration Examination Officer, Canada Immi
gration Centre at Woodstock, New Brunswick was
not an appointment within the meaning of para
graph 21(b) of the Public Service Employment
Act; 2) did the Commission wrongfully decline
jurisdiction when it refused to express its opinion
on the question of whether or not the applicants'
opportunities for advancement had been prejudi-
cially affected by this appointment?
It is important to note from the documents filed
in evidence that a secondment agreement was
signed between Customs and Excise, CEIC and
the secondee setting out the terms, conditions and
duration of the secondment. In short, according to
this agreement, Mr. Thornton was to work as an
IEO and to report to the manager, Canada Immi
gration Centre at Woodstock, N.B. His assign
ment was to commence on December 14, 1987 and
to terminate on December 31, 1988 at which time
he was to return to Customs and Excise. In the
meantime, he was to be paid by Customs and
Excise and to receive any salary increments or
benefits that could be determined.
At the hearing, counsel for the applicants
argued that the process of appeal established by
Parliament in section 21 of the Public Service
Employment Act is designed to ensure that the
merit principle embodied in section 10 of the Act
is properly enforced and that the most meritorious
candidate is selected for appointment, giving every
person whose opportunity for advancement, in the
opinion of the Commission, has been prejudicially
affected by the appointment, a right of appeal to
an appeal board established by the Public Service
Commission. Decisions of the Commission ad
dressing the question of opportunity for advance
ment are reviewable by this Court for error of law,
excess of jurisdiction and other traditional bases of
judicial orders in the nature of certiorari and
mandamus.
Counsel for the applicants' main argument is
that the paramount consideration which ought to
govern the opinion of the Commission under para
graph 21 (b) of the Act is the prejudice which may
or may not result from the challenged appointment
without competition: when the Commission
addresses issues unrelated to that paramount con
sideration, it exceeds its jurisdiction and its deci
sion ought to be quashed. Counsel further argued
that the Commission was wrong in basing its
decision upon the issues of appointment, a matter
within the exclusive jurisdiction of the Appeal
Board. Finally, the applicants claim that the Com
mission wrongfully declined its jurisdiction when it
ruled that the purported secondment of R. B.
Thornton was not an appointment for purposes of
section 21 of the Act. They rely on two recent
judgments of the Supreme Court of Canada, in
Brault' and Doré, 2 and on a judgment of the
Federal Court of Appeal in Lucas.'
On the other hand, counsel for the respondent
took the position that the Commission, in render
ing the opinion requested by the applicants, cor
rectly decided the issue on the given facts, taking
into account that the filling of this position for a
set period of twelve months was clearly not an
appointment. Counsel argued that the Act does
not prohibit the temporary secondment or loan of
an individual to perform a set of duties different
than those of his regular position when it is clear
that such a loan is indeed of a temporary nature
and that the employee remains appointed to his
regular position, does not benefit from any salary
increase, and will return to the duties of his regu
lar position at the conclusion of the term of the
loan, as appears in the "secondment agreement".
It is common ground that an opinion expressed
by the Commission pursuant to paragraph 21 (b) of
the Act is subject to review by this Court.'
A solution to the present dispute calls for a
thorough examination of paragraph 21(b) of the
Act which deals with appointments made without
competition. In my view, the wording of this para
graph involves a two-step action. First, it must be
' Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489.
2 Doré v. Canada, [1987] 2 S.C.R. 503.
3 Lucas v. Canada (Public Service Commission Appeal
Board), [1987] 3 F.C. 354.
4 Blachford v. Public Service Commission of Canada, [1983]
1 F.C. 109 (T.D.).
determined if there was an appointment, already
made or about to be made. Second, this being
established, every person who claims that his op
portunity for advancement has been prejudicially
affected by this appointment (the French text says
"sont ainsi amoindries") may ask the Commission
to express its opinion and if it comes to the conclu
sion that his opportunity for advancement has been
prejudicially affected, then he may appeal to a
Board established by the Commission. It is incum
bent upon the Commission, not upon the Appeal
Board, to decide firstly if there was an
appointment.
The question of authority being resolved, the
Court must decide whether the Commission was
right in deciding that, in the instance, there was no
appointment but a secondment. The respondent
relied on the Secondment Agreement signed by the
parties. He also referred to the Belisle' case,
involving similar facts, where the Federal Court of
Appeal stated as follows [at page 358]:
As I understand it, each of the five foreign service officers
whose secondment is appealed was seconded under a scheme
which has as an objective the assignment of foreign service
officers, employed within External Affairs, to serve for tempo
rary periods in other departments. The word "second" in the
memoranda involved in this case, has, I think, the meaning
given to it in one of its definitions in the Concise Oxford
Dictionary, 6th ed. (1976), p. 1025: "transfer (official) tem
porarily to another department". Each of the secondments
contemplates that the officer will retain his or her position
within External Affairs while providing services in the Man
power and Immigration Commission for a limited time. On the
material in this case, I am satisfied that this is what happened.
I agree with the board that these particular secondments do not
involve the appointment of the seconded officers in new posi
tions in the commission.
Counsel for the applicants argued that the
Belisle case, decided in 1983, was in fact overruled
by the Supreme Court of Canada in the Brault
and Doré cases aforementioned, delivered in 1987.
I do not agree.
In the Brault case, the Department of National
Revenue, Customs and Excise, had authorized the
establishment of a canine detection unit and
posted a notice inviting customs inspectors to
apply for assignment as a "dog handler", which
function required additional and special qualifica-
' Re Belisle et al. and Public Service Commission Appeal
Board (1983), 149 D.L.R. (3d) 352 (F.C.A.).
tions. The Supreme Court had to decide whether
the creation of additional functions in a position in
the Public Service, calling for additional qualifica
tions and the selection of a person possessing such
qualifications, amounts to the creation of a new
position requiring an appointment based on selec
tion according to merit from which an appeal will
lie to an appeal board under section 21 of the Act.
In that case, facts were different from the
present instance and even though the Supreme
Court allowed the appeal, Le Dain J. stated that
the principle of selection according to merit is
subject to the necessary flexibility that must be
extended to the administration. He had this to say
[at pages 501-502]:
Obviously the administration must have reasonable flexibility
to make minor changes in the functions of an existing position
in the Public Service which the occupant of the position may be
called on to perform, without thereby creating a new position
for which an appointment based on selection according to merit
must be made. Where, however, as in the present case, the
change in functions is of such a significant or substantial nature
as to call for additional or special qualifications requiring
evaluation and therefore what amounts to a new selection for
the position, a new position within the meaning of the Act is
created.
This is clearly not the situation here, where there
is no creation of a new position.
In the Doré case, delivered by the Supreme
Court of Canada simultaneously with the Brault
case, Le Dain J. referred to the Belisle case, but it
cannot be said that Belisle was overruled. In Doré,
an employee of Canada Employment Centre had
been assigned to the functions of supervisor of the
reception and inquiries section pending classifica
tion of a new position for such functions. The
Supreme Court had to determine whether that
assignment was an appointment to a position
within the meaning of the Public Service Employ
ment Act giving rise to a right of appeal under
section 21 of the Act. The Court concluded that
the new functions performed by the employee were
sufficiently different from those previously per
formed by him to constitute a new position accord
ing to the test indicated in Brault and because the
employee had occupied this position on a full-time
basis for some 9 months, it had acquired that
character. But Le Dain J. expressed the view of
the Court in the following words [at page 5111:
On this issue, I am of the view that while it must be possible for
the administration to assign a person in the Public Service to
new functions on a temporary basis without giving rise to the
application of the merit principle and the right of appeal, that
reasonable flexibility should no longer be available where, as in
the present case, the assignment is permitted to become one of
such significant and indefinite duration as may be presumed to
place the occupant of the position at a distinct advantage in any
subsequent selection process.
In the present instance, the situation is quite
different: R. B. Thornton was assigned to a new
position for a set term of 12 months after which he
is to return to his former occupation. Consequent
ly, I find that the Commission was right in decid
ing that the filling of the position for a definite
period of short duration only, while the individual
who occupied the position was on leave for person
al reasons, was clearly a secondment and not an
appointment. This was clearly an exercise of the
type of management flexibility necessary for the
proper administration of a government depart
ment.
For these reasons, the application is unfounded
and shall be dismissed with costs.
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.