T-2982-89
Michael Kennedy (Applicant)
v.
Public Service Commission (Respondent)
INDEXED AS: KENNEDY V. CANADA (PUBLIC SERVICE COM
MISSION) (T D.)
Trial Division, Strayer J.—Ottawa, January 18;
February 27, 1990.
Public service — Jurisdiction — Application to quash
Public Service Commission decision applicant's opportunity
for advancement not prejudicially affected by reclassification
of positions of co-workers who underwent additional training
— Incumbents appointed without competition — Commission
finding reclassification of employees based solely on individu
al performance within own positions rather than upgrade of
specific positions — Role of Commission under s. 21(1) —
Review of role of appeal boards — Within Commission's
jurisdiction to form opinion persons not appointed not prejudi-
cially affected by non-exclusive appointments.
This was an application to quash the Public Service Commis
sion's decision that the applicant's opportunity for advancement
had not been prejudicially affected by the reclassification of
certain positions, and for mandamus requiring the Commission
to decide that question. The applicant is a cartographic tech
nologist at the Canada Centre for Mapping. The Centre
acquired computerized mapping equipment and training was
offered to those who were interested and willing to accept shift
work. The applicant did not take the training because he was
unable to do shift work. His was the only position out of
twenty-four not reclassified to a higher level. The incumbents
were appointed without competition. Further to the applicant's
request, the Commission stated its opinion that his opportunity
for advancement had not been prejudicially affected because
the reclassification was based solely on individual performance
within their own positions; therefore there was no selection of
persons for appointment. The applicant submitted that the
Commission decided either that the applicant was not qualified
or that the elevation of his colleagues did not constitute an
"appointment". The Commission argued that it had decided
that the applicant was not prejudicially affected because there
was no limit on the number of positions to be reclassified. The
issues were the role of the Public Service Commission under
subsection 21(1) of the Public Service Employment Act and
whether the Commission's opinion fell within that role.
Held, the application should be dismissed.
In light of the provision in subsection 21(1) for a hearing
before an appeal board, the role of the Commission under
subsection 21(1) in respect of appointments made without
competition is to act as a screening mechanism to identify those
who have sufficient standing to challenge the appointment on
the basis of an alleged departure from the merit principle. This
includes a determination whether in law the would-be appellant
can show that he has lost some advantage if all he alleges is
true. The Commission has power to form the opinion that
where the appointment complained of is non-exclusive i.e. one
which in no way limits the possibility of other similar appoint
ments to other similarly reclassified positions, then persons not
appointed to that position cannot in law be prejudicially affect
ed. The Commission's opinion was an exercise of such power.
The words "there has not been a selection of persons for
appointment" can reasonably be interpreted as meaning that
there has not been a selection among a larger number of people
for a limited number of posts. Rather, each position had been
reclassified upward where the incumbent met the requirements
and the appointment of one incumbent to his reclassified
position did not affect the opportunity for appointment of the
incumbent of another position to his own position as
reclassified.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Public Service Employment Act, R.S.C., 1985, c. P-33,
ss. 10, 21(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Yergeau v. Public Service Commission Appeal Board,
[1978] 2 F.C. 129; (1978), 22 N.R. 514 (C.A.).
CONSIDERED:
Kennedy v. Public Service Commission (Can.) (1988), 25
F.T.R. 184 (F.C.T.D.); Nenn v. The Queen, [1981] 1
S.C.R. 631; (1981), 122 D.L.R. (3d) 577; 36 N.R. 487;
Sorobey v. Canada (Public Service Commission Appeal
Board), [1987] 1 F.C. 219; (1986), 72 N.R. 318 (C.A.);
Keenan v. Canada (Public Service Commission), [ 1989] 3
F.C. 643; (1989), 27 F.T.R. 160; 100 N.R. 232 (C.A.);
Blagdon v. Public Service Commission, [1976] 1 F.C.
615 (C.A.); Canada (Attorney General) v. Pearce, [1989]
3 F.C. 272; (1989), 99 N.R. 338 (C.A.).
COUNSEL:
Andrew J. Raven for applicant.
Geoffrey Lester and Marie-Claude Turgeon
for respondent.
SOLICITORS:
Soloway, Wright, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
This is an application for certiorari to quash a
decision of the Public Service Commission deliv
ered on July 10, 1989 which determined that the
applicant's opportunity for advancement had not
been prejudicially affected by the reclassification
of certain positions in the Department of Energy,
Mines and Resources; and for mandamus requir
ing the Commission to decide that question again
in accordance with the requirements of section 21
of the Public Service Employment Act.'
Facts
The applicant is employed at the Canada Centre
for Mapping, part of the Department of Energy,
Mines and Resources, in Ottawa. He is employed
as a cartographic technologist and occupies a posi
tion classified at the DD-04 level. To the extent
that the factual background is relevant, there
seems to be no disagreement as to what actually
happened. The applicant had been employed for
some time at the Canada Centre for Mapping
along with twenty-three other cartographic tech
nologists, all in positions classified DD-04. In
about 1983 the centre acquired new computerized
mapping equipment and offered training in respect
of it to those who were interested and willing to
accept shift-work. The applicant takes the position
that at that time he was unable to accept shift-
work with the result that he did not get training.
He states that he later requested training and it
was refused him. The other twenty-three carto-
graphic technologists in question each took train
ing and as they completed their training they
received acting pay at the DD-05 level. In 1988
the positions of these twenty-three technologists
were all classified as DD-05 and on July 28, 1988
the Public Service Commission gave notice of the
appointment without competition of the twenty-
three incumbents of DD-04 positions to their
respective reclassified positions now at the DD-05
level. Shortly thereafter the applicant requested an
' R.S.C., 1985, c. P-33 which is the same in substance as the
comparable section in the previous Act which was in force
when most of the relevant events occurred.
opinion from the Commission, as required by sec
tion 21 of the Public Service Employment Act as a
precondition to an appeal by him to an appeal
board. Subsection 21(1) of that Act which is iden
tical in substance to the provision current when the
applicant first requested the Commission's opin
ion, provides as follows:
21. (1) 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, every
unsuccessful candidate, in the case of selection by closed com
petition, or, in the case of selection 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 representatives, shall be given
an opportunity to be heard.
On September 30, 1988 the Commission stated
its opinion that the opportunity for advancement
of the applicant had not been prejudicially affected
by the appointment without competition of the
other twenty-three cartographic technologists to
DD-05 positions. The reason given for that opinion
was as follows:
It was clearly established that the requestor does not meet a
basic requirement of the positions in question. His opportunity
for advancement cannot be considered as prejudicially affected
by the appointments of other individuals to positions for which
he is not qualified.
The applicant sought certiorari and mandamus
in this Court and such was granted by my col
league Martin J. on December 21, 1988. 2 Martin
J. concluded that the Commission had erred in law
in deciding whether the applicant was qualified for
the positions in question. He held that in the
circumstances the Commission was [at page 186]:
... exercising the jurisdiction which should properly be exer
cised by the appeal board and not by the Commission.
He therefore quashed the decision and directed
that the Commission "render its opinion in accord
ance with the law" [at page 186].
In the course of his reasons Martin J. observed
[at page 186]:
In this case, 23 similarly classified co-workers of the appli
cant were appointed to related positions at higher classification
2 Kennedy v. Public Service Commission (Can.) (1988), 25
F.T.R. 184 (F.C.T.D.).
levels without competition. In my view the Commission had no
need to go further than to consider those facts in order to
determine, not whether the applicant should or should not have
been appointed to one of those positions, but the prejudice
which may or may not have been caused to the applicant as a
result of those appointments without competition...
The Commission reconsidered the matter and by
letter of July 10, 1989 advised the applicant of its
opinion, dated June 23, 1989, that it still con
sidered that his opportunity for advancement had
not been prejudicially affected by the appointment
of the twenty-three appointees. The reason given
for this opinion was as follows:
The reclassification of these employees was based solely on
individual performance within their own positions rather than
an upgrade of the twenty-three specific positions; therefore,
there has not been a selection of persons for appointment.
The applicant has brought this proceeding to have
the June, 1989 opinion of the Commission quashed
on the ground that the Commission erred in law or
exceeded its jurisdiction in giving such opinion.
The applicant characterizes the second opinion as
involving either a conclusion that the applicant
was not qualified for the positions to which his
twenty-three colleagues were appointed, or that
their elevation to the rank of DD-05 did not
constitute an "appointment" and therefore does
not come within the language of subsection 21(1)
of the Public Service Employment Act. The appli
cant contends that the Commission had no author
ity under that subsection to decide either of those
matters. The Commission contends that it did not
purport to decide such matters by the opinion
which it formulated on June 23, 1989: instead, it
says that it decided that the applicant was not
prejudicially affected because there was no limit
on the number of positions to be reclassified. That
is, the reclassification of each position and the
appointment thereto of the incumbent depended on
the qualifications of the particular incumbent of
that DD-04 position and thus the applicant suf
fered no disadvantage in the non-reclassification of
his position by the fact that the positions of
twenty-three of his colleagues were reclassified to
DD-05.
Issues
The essential issues here are:
(1) What is the role of the Public Service Com
mission under subsection 21(1) of the
Public Service Employment Act?
(2) Can the opinion of the Commission formu
lated on June 23, 1989 and issued July 10,
1989 be characterized as within that role?
Conclusions
The respective responsibilities under subsection
21(1) of the Commission and of an appeal board
are not well defined.
At the outset one can assume that both are
bound to respect the fundamental principle stated
in section 10 of the Act that:
10. Appointments to or from within the Public Service shall
be based on selection according to merit ....
whether they are made with or without competi
tion. If one took literally the words of subsection
21(1) requiring the Commission, when requested,
to give an opinion as to whether a given person's
"opportunity for advancement ... has been pre-
judicially affected" by a selection without competi
tion, and if one ignored the other words of the
subsection, one could attribute to the Commission
a plenary power to decide whether the merit prin
ciple had been applied. That is, the Commission
could address all matters such as whether there
had indeed been an "appointment" and whether
the person in question was better qualified for that
appointment than the person who was in fact
appointed. These decisions could all be seen as
part of a determination as to whether that person
ever had an "opportunity for advancement". One
who never had the necessary talent for the job
could not be "prejudicially affected". Nor could he
be prejudiced by an "appointment" if there has
not, in law, been an "appointment". But such a
broad interpretation would make meaningless the
provision for hearing before an appeal board.
It is also apparent that there must be some
functional difference between the giving of an
opinion by the Commission and the determination
of an appeal by an appeal board. The Commission
in issuing an opinion has been held to perform an
administrative function in which it is expected to
exercise its expertise.' On the other hand, appeal
boards are regarded as exercising quasi-judicial
functions. Thus subsection 21(1) specifically pro
vides for the right of the appellant to be heard by
the appeal board whereas he has no such statutory
right to be heard by the Commission in respect of
the issue of an opinion by it under that subsection.
The Federal Court of Appeal has underlined the
need for the appeal board to give an appellant a
fair hearing, including the right to cross-examine
witnesses called on behalf of the deputy head in
opposition to the appeal. 4 The Court of Appeal has
attributed to appeal boards exclusive jurisdiction
over fundamental questions such as whether the
filling of a position is an "appointment" within the
meaning of the section. 5 The Court of Appeal has
also stated that the essential question for an appeal
board to determine is whether the selection of the
successful candidate has been made in accordance
with the merit principle, 6 and that in doing so it
can take a broad look at the circumstances leading
up to the selection (such as a temporary assign
ment to the position in question having been made
of the successful candidate for several months
prior to a competition, and the nature of the
questions put to the candidates by the selection
board). 7
If there is any unifying concept to define the
jurisdiction of the appeal board, as opposed to that
of the Commission, under subsection 21(1) it
would appear to be that it should be for the boards
to decide disputed questions of fact pertinent to a
determination as to whether the merit principle
has been applied in the making of an appointment.
This is demonstrated, for example, in the decision
of the Federal Court of Appeal in the Keenan case.
There the Court held that it was for the appeal
3 Nenn v. The Queen, [1981] 1 S.C.R. 631, at p. 637.
° See e.g. Sorobey v. Canada (Public Service Commission
Appeal Board), [1987] 1 F.C. 219 (C.A.), at p. 221.
5 Keenan v. Canada (Public Service Commission), [1989] 3
F.C. 643 (C.A.).
6 Blagdon v. Public Service Commission, [1976] 1 F.C. 615
(C.A.), at p. 618.
7 Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272
(C.A.).
board to determine whether a secondment or
assignment amounted to an "appointment" and
Mahoney J.A. writing for the Court stated:
The jurisprudence makes it amply clear that either may, or
may not, be an appointment depending on the particular cir
cumstances, vid. Canada (Attorney General) v. Brault, [1987]
2 S.C.R. 489; Dori v. Canada, [1987] 2 S.C.R. 503; and Lucas
v. Canada (Public Service Commission Appeal Board), [1987]
3 F.C. 354 (C.A.). I cite these decisions only to demonstrate
that the question is an arguable one very much dependent on
the circumstances of each case.
In my respectful opinion, the Act does not authorize the
Commission to make that decision. Its authority, in the relevant
circumstances, is limited by section 21 to the formation and
expression of an opinion as to whether the staffing action taken
or proposed has prejudicially affected the opportunity for
advancement of a person seeking to appeal. If put in issue, the
question whether or not that staffing action was or will be an
appointment is a matter to be decided by the appeal board. If it
decides that the staffing action entailed no appointment, it will
have decided that it is without jurisdiction to proceed but that
is its decision to be made after the required hearing, not a
decision to be reached by the Commisison following
investigation. 8
While this of course involves a certain interpreta
tion of the law as well, it appears that fairly
disputable questions of fact should be determined
by an appeal board after a fair hearing in which
both parties may participate.
Thus it appears that the role of the Commission
under subsection 21(1) in respect of appointments
made without competition is of a relatively limited
nature. It is apparent that the Commission is to
act as a screening mechanism to identify those who
ought to be seen as having suffficient standing to
challenge the appointment that has been made on
the basis of an alleged departure from the merit
principle. This includes, among other things, a
determination whether in law the would-be-appel
lant can show that he has lost some advantage
even if all that he alleges is true. I respectfully
agree with the decision of my colleague Martin J.,
who quashed the first opinion rendered by the
commission on September 30, 1988 in respect of
this applicant on the basis that the Commission
had no authority under subsection 21(1) to deter
mine whether the applicant was qualified for the
position in question. That is clearly an issue poten
tially involving the relative qualifications of the
8 Supra, note 5, at p. 646.
applicant and his twenty-three colleagues, a matter
on which he should be entitled to a fair hearing
before an appeal board. But there are other more
objective questions which may properly be deter
mined by the Commission.
Without attempting to define the category of
decisions left to the Commission, I believe it has
the power in the exercise of its expertise to form
the opinion that where the appointment com
plained of is non-exclusive (i.e. one which in no
way limits the possibility of other similar appoint
ments to other similarly reclassified positions) then
persons not appointed to that position can not in
law be regarded as prejudicially affected. If any
content is to be given to the power granted to the
Commission in subsection 21(1) to form an opin
ion, it seems to me that this at least must be within
that power. I also derive support for this conclu
sion from the decision of the Court of Appeal in
Yergeau v. Public Service Commission Appeal
Board 9 where it was held that the Commission
could not fulfill its responsibilities under subsec
tion 21(1) by adopting a general regulation imply
ing that where a person is appointed to a reclassi
fied position which he occupied prior to its
reclassification this would be deemed not to have
prejudicially affected the opportunity for advance
ment of any other person. Instead, it was held that
such a decision had to be taken individually by the
Commission with respect to any person seeking to
appeal, and the Court of Appeal specifically
referred that question back to the Commission for
its opinion. That question was essentially identical
to the one facing the Commission in the present
case.
Further, I believe that the second opinion for
mulated by the Commission in this matter of June
23, 1989 can be characterized as an exercise of
such a power. While the language of the reasons
for the opinion is somewhat ambiguous, I think it
is reasonable to interpret the words
... there has not been a selection of persons for appointment
9 [1978] 2 F.C. 129 (C.A.).
in the context to mean that there has not been a
selection among a larger number of people for a
limited number of posts. Rather, each position has
been reclassified upward where the incumbent met
the requisite requirements and the appointment of
one incumbent to his reclassified position does not
affect the opportunity for appointment of the
incumbent of another position to his own position
as reclassified.
Notwithstanding the submissions of the appli
cant, I do not accept that the Commission ignored
the opinion of Martin J. that it need go no further
than consider that twenty-three similarly classified
workers were appointed to reclassified positions
and the applicant was not. The Commission obvi
ously has now considered those uncontroverted
facts but has concluded that in law they do not
demonstrate any prejudicial affectation of the
applicant's opportunities for the reclassification of
his position and his appointment thereto.
It must be remembered at all times that an
application for judicial review is not an appeal and
the Court is not at liberty to substitute its own
opinion on the facts for that of the authority being
reviewed. I am satisfied that the Commission has
not misdirected itself on the permissible legal
interpretation of subsection 21(1) or as to its
jurisdiction under that subsection. There is there
fore no basis for quashing the decision.
Disposition
The application is therefore dismissed with
costs.
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