A-13-76
J. C. Metcalfe, R. A. Button, M. A. Schellenberg-
er, J. T. Land, R. P. Puddester, B. T. Pflanz, J.
M. Gibson, R. Caldato, H. Cunliffe, I. Hamilton,
A. J. Moore and J. O. R. Martineau (Applicants)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Heald and Ryan JJ. and Kerr
D.J.—Ottawa, September 17 and 23, 1976.
Judicial review—Public Service—Selection of Foreign Ser
vice Officer—Whether selection based on merit—Whether
made in accordance with procedures established by Public
Service Employment Regulations, s. 7(1)(b)(i)—Whether
applicants excluded from consideration by improper addition
of essential qualifications—Whether person selected eligible to
compete Public Service Employment Act, R.S.C. 1970, c.
P-32—Public Service Employment Regulations, s. 7(1)(b)(i)
and (ii).
Applicants contend that the selection in dispute was not
based on merit, that it was not made in accordance with the
procedures established by the Public Service Employment
Regulations, section 7(1)(b)(i), that unauthorized qualifica
tions were added so as to exclude the applicants and that the
person selected was ineligible. Respondents argue that the
additional qualifications were legitimately added by the Minis
ter and the Department concerned as part of their managerial
function.
Held, the application is dismissed. Applicants have not made
out a case under either the first or the last of their contentions
and the Court therefore only considered arguments relevant to
the second and third grounds of contention. With respect to
these, the respondent's claim that the selection procedure was
made in accordance with the Regulations and that the addition
al qualifications required were properly added in view of the
requirements of the post in question is supported by a reading
of the standards applicable in this case and by the case of
Brown v. Appeals Branch, Public Service Commission. The
qualifications for any post within a certain class are not neces
sarily the same because a given post may have special require
ments and it is a management function to assess and prescribe
those requirements.
Brown v. Appeals Branch, Public Service Commission
[1975] F.C. 345, applied.
APPLICATION for judicial review.
COUNSEL:
Y. A. George Hynna for applicants.
J. P. Malette for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicants'.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: At the outset of the argument on this
application, counsel for the applicants, with the
consent of counsel for the respondent, applied to
vary the contents of the case as more particularly
set out in the order of Le Dain J. dated April 7,
1976. The Court reserved its decision on this
application and has now decided to grant this
preliminary motion varying the contents of the
case accordingly.
Applicants' counsel based this section 28
application on four main grounds which were as
follows:
1. The selection was not based on merit as required by the
Public Service Employment Act.
2. The selection was not made in accordance with the proce
dures established by the Public Service Employment Regula
tions for an "other process of personnel selection" under section
7(1)(b)(i) thereof.
3. Essential or minimum qualifications not authorized by stat
ute and contrary to classification standards established under
the Financial Administration Act for the FS 3 position were
added, with the result that the applicants, although otherwise
qualified, were excluded from consideration.
4. The person selected was not at the time of the selection
process an employee in the Public Service and was therefore a
person outside the area of competiton [sic] and not qualified
for consideration at all.
At the conclusion of submissions by counsel for
the applicants, the Court advised respondent's
counsel that it would not be necessary for him to
make submissions on grounds 1 and 4 (supra)
since we were satisfied that the applicants had not
made out a case under either of these grounds.
Consequently the argument of respondent's coun
sel was restricted to grounds 2 and 3.
This section 28 application seeks to contest the
selection of one W. E. Sinclair for appointment as
a FS 3 (Foreign Service Officer), Department of
Manpower and Immigration, for duties in London,
England. The selection was made through inven
tory identification and assessment pursuant to sec-
tion 7(1)(b)(i) of the Public Service Employment
Regulations'. The purpose of the selection process
was to fill one position involving both foreign
service functions and personnel functions at a
senior level. The area of competition included
employees in the Department who occupied posi
tions in a group and level with a salary range
which overlapped $27,000. A DATA STREAM
search was conducted using the following search
criteria: "Experience or demonstrated skills in gen
eral administration and personnel administration
with migration and manpower-planning and poli-
cy-anal-development with managing and a bache
lor's degree." Only the selected candidate, Mr.
Sinclair, was identified in the search. The appli
cants were not identified because they did not
possess the required experience or demonstrated
skills.
It is the submission of the applicants that the
inventory search conducted in this case was not
based on qualifications ascribed for a rotational
FS 3 foreign service position by the applicable
classification standards but rather that additional
qualifications were used, said qualifications being
established as standards for positions in the Per
sonnel Administration Group. Thus, the applicants
argue that the authority of a deputy head does not
extend to importing the qualifications for a person
nel administration position into the qualifications
for an FS 3 position, thereby making them a part
of the minimum qualifications for the FS 3
position.
The respondent's answer to this submission is
that although several of these applicants had previ-
Section 7(1) reads as follows:
7. (1) Every appointment shall be in accordance with selec
tion standards and shall be made
(a) by open or closed competition; or
(b) by other process of personnel selection
(i) from among employees in respect of whom data is
recorded in an inventory, which employees meet the
qualifications for the appointment, or
(ii) where no employee referred to in subparagraph (i) is
qualified and suitable for the appointment, from among
applicants who are not employed in the Public Service in
respect of whom data is recorded in an inventory, which
persons meet the qualifications for the appointment.
ously been found qualified in a former FS 3 selec
tion process, this previous selection process was for
an FS 3 post in which the qualifications required
were different than for the one in issue (i.e.,
Foreign Service Officer (FS 3) for duties at a post
in London, England) and that since the search
criteria used in this selection process reflected
these differences it was not unreasonable that the
applicants were not identified. The respondent
submits further that the Classification and Selec
tion Standards recognize that positions involving
personnel administration duties could be included
in the foreign service group and in this case, since
the particular post required extensive knowledge in
the personnel field, the Department quite reason
ably required candidates to possess experience in
this area and eliminated candidates who lacked
that experience.
Support for the respondent's position is to be
found by a perusal of the standards applicable in
this case (see Annex to Case, pages 40, 41 and
102). It is clear to me from such a perusal that
personnel administration can be included as a
component part of the required qualifications in
the instant case and that the Department did not
act improperly in providing for such an inclusion.
Further support for the respondent's submis
sions, may, in my opinion, be derived from the
decision of this Court in Brown v. Appeals Branch,
Public Service Commission 2 . At page 350 thereof,
Chief Justice Jackett expressed the view that sub
ject to employees having the qualifications
required by the terms of the classification for a
position, the minister's power of management of a
department would include the right to stipulate
what qualifications he requires of any person being
appointed to a position in his department. By way
of example, to illustrate and further explain this
view, the Chief Justice said in footnote 4 on page
350:
E.g., there may be authority to employ an employee in a
position of a class that requires, as qualifications, a certain
ability to type and a certain ability to take shorthand but,
because such person is required for service in a certain foreign
country, the Minister may require, as an additional qualifica
tion, the ability to use the language of that country.
It seems to me that what the Minister and the
Department did in the case at bar, is almost
2 [1975] F.C. 345.
identical to the example cited by the learned Chief
Justice supra. The Minister and the Department,
in the exercise of their management functions,
determined that for this particular post in London,
it was necessary for the successful applicant to
have extensive knowledge in the personnel field.
This is, in my view, a proper exercise of those
management functions and to hold otherwise,
could possibly result in the selection of an
employee, who, while possessing the minimum
qualifications for an FS 3 position, would be quite
unsuited and unqualified for the particular post
being considered. In my opinion, such a result
would be highly undesirable from the point of view
of the efficiency of the Public Service and is
clearly not the intent of the applicable statutes and
regulations.
Further support for this view is to be found on
page 357 of the Brown case (supra), where the
Chief Justice, in summarizing the steps contem
plated by law before a promotion can be made in
the manner contemplated by Regulation 7(1)(b)(i)
(supra), sets out as the third step the following
requirement:
(3) request from the deputy head to the Public Service
Commission for appointment to the position pursuant to section
10 of the Public Service Employment Act, which request must,
either expressly or impliedly, state
(a) the qualifications required by the relevant classification,
if any, for positions of that class, and
(b) in addition, qualifications required by the deputy head
for the particular position, [Underlining mine].
As I perceive it, the Chief Justice, in this passage
is expressing the view that the qualifications for an
employee to hold any and all posts or positions
within a certain class (in this case, FS 3) are not
necessarily the same because different posts or
positions within that class may have different
requirements and it is a management function to
assess and prescribe those different requirements
so that the qualifications of the successful appli
cant are tailored to the requirements of the post or
position in competition. I agree with this view and,
accordingly, it follows that on this view of the
matter, the applicants are not entitled to succeed
on this application.
For the foregoing reasons, I would dismiss the
section 28 application.
* * *
RYAN J.: I concur.
* * *
KERR D.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.