A-78-76
Robert J. L. Delanoy (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Jackett C.J., Ryan J. and Kerr
D.J.—Ottawa, June 24 and August 3, 1976.
Judicial review Public Service Application to set aside
decision of Public Service Commission Appeal Board—Hear-
ing before Board on basis of "Admission of Facts and Issue"
Whether or not applicant lawfully eliminated from competi-
tion—Validity of amendment to Public Service Commission
Selection Standards—Standards must relate to purpose to be
served—Board ought to have taken a position Matter
referred back to Board on basis that basic requirement inval-
id—Federal Court Act, s. 28—Public Service Employment
Act, R.S.C. 1970, c. P-32, ss. 5, 8, 10, ii, 12 and 21.
Applicant applied for the review and the setting aside of the
decision of the Public Service Commission Appeal Board
respecting the applicant's appeal under section 21 of the Public
Service Employment Act. Applicant was advised that he was
ineligible for Public Service competition on the ground that he
failed to meet one of its basic requirements: that an employee
must have been appointed to his current position or classified in
the same group and at the same level at least one year before
the closing date of the competition. This requirement was first
promulgated in Public Service Commission Bulletin 75-20,
dated 28 August 1975. At issue was whether the applicant was
properly eliminated for the sole reason that he failed to fulfil
the one-year requirement.
Held, the application is granted, the Appeal Board decision
is set aside and the matter is referred back to the Appeal Board
for disposition on the basis that the basic requirement in
question is invalid. The reasons given for making the one-year
amendment, which was approved by the Public Service Com
mission, were that on-the-job experience of the employee should
be of a standard level and that excessive mobility was not in the
best interests of the Public Service and should be curbed. The
authority granted to the Commission by sections 10, 11 and 12
of the Public Service Employment Act is to prescribe standards
so that the person who best merits the appointment having
regard to all the circumstances shall be selected. To be within
the meaning of section 12 every standard must relate to the
purpose to be served and it is not possible to perceive a rational
link between the basic requirement involved in this case and
selection according to merit. It may be that section 12 confers
no authority to establish qualifications (see Bambrough v.
Appeal Board established by the Public Service Commission
[1976] 2 F.C. 109). However, the implications of that case
need not be considered since there was no question here of a
participation by the Commission with the Department in the
elaboration of qualifications for the position. The question of
the validity of the requirement was directly involved in the
appeal which was properly before the Board and the Board
ought to have taken a position on the question.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C., for applicant.
A. M. Garneau and L. S. Holland for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an application under section 28
of the Federal Court Act to review and set aside a
decision rendered on the 3rd day of February,
1976 by Mrs. Helen Brazier as Chairman of the
Public Service Commission Appeal Board respect
ing an appeal brought by Robert J. L. Delanoy
under section 21 of the Public Service Employ
ment Act' against certain proposed appointments
to the Public Service.
' R.S.C. 1970, c. P-32, s. 21 reads:
21. Where a person is appointed or is about to be appoint
ed under this Act and the selection of the person for appoint
ment 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.
The hearing before the Public Service Commis
sion Appeal Board proceeded on the basis of an
"Admission of Facts and Issue". The admission
was signed by the representative of the appellant
and the representative of the Department. The
admission of facts and issue 2 reads as follows:
PUBLIC SERVICE EMPLOYMENT ACT
APPEAL HEARING
BETWEEN:
ROBERT DELANEY APPELLANT
AND:
THE DEPARTMENT OF REVENUE CANADA
(TAXATION) EMPLOYING DEPARTMENT
ACTING ON A DELEGATED AUTHORITY
FROM THE PUBLIC SERVICE COMMISSION
ADMISSION OF FACTS AND ISSUE
The representative of the appellant is Mr. H. Edward Done,
Public Service Alliance of Canada. On behalf of the appellant
Mr. Done accepts the following facts as relevant and accurate
for the purposes of hearing and determining this appeal.
The representative of the Employer is Mr. K. Jacobsen, a
Personnel Administrator with Revenue Canada, Taxation, in
Calgary, Alberta. Mr. Jacobsen also accepts the facts as rele
vant and accurate for the same purpose.
THE FACTS
Mr. Delaney was originally appointed to the Public Service
effective on October 1, 1974, and classified as a Program
Administrator level 2 Field Auditor in Revenue Canada, Taxa
tion. At the time of his appointment to the Public Service Mr.
Delaney held a degree of Bachelor of Commerce and he was
also a Registered Industrial Accountant.
In April of 1975 Mr. Delaney, who was at the time still a
PM-2, applied for a PM-3 position through competition
75-TAX-CAL-CC-13. Mr. Delaney was found to be qualified
for appointment at the PM-3 level and was declared a success
ful candidate for that competition. He was appointed to the
PM-3 position effective August 4, 1975.
Among other candidates in competition 75-TAX-CAL-CC-
13 were Mr. Michael J. Clark and Mr. Frans T. Heynen, both
of whom were at that time classified at level PM-2, the same as
Mr. Delaney. At the time of that competition both Mr. Clark
and Mr. Heynen were found to be unqualified for the PM-3
position available at that time, and which was won by Mr.
Delaney.
For the period from November 1, 1975 until December 31,
1975, Mr. Delanoy was on loan to the Business Audit Section
to temporarily perform the duties of an AU1 position. Over
that period he performed satisfactorily the duties assigned to
him and he was paid acting pay at the second step of the AU1
pay range.
2 The applicant's name is incorrectly spelled in the admission
of facts and issue as "Delaney".
On or about November 17, 1975, a competition was offered
for a position of AU-1 Business Auditor in the Calgary District
Office. The position opened to competition was the same
position the duties of which Mr. Delanoy was performing
temporarily. The competition was 75-TAX-CAL-CC-40 and
the closing date was November 24, 1975. Mr. Delaney applied
for the position of AU-1 Business Auditor within the stipulated
time limit. Mr. Michael J. Clark and Mr. Frans Heynen were
among other applicants in that same competition.
Mr. Delaney was screened out of competition during a
preliminary review because he failed to meet one of the basic
requirements for the position, which is set out below, and which
was clearly noted on the competition poster.
To be eligible for appointment to the position(s) an employee
must have been appointed to his/her current position or have
been classified in the same group and at the same level at
least one year prior to the closing date of this competition.
This information was communicated to Mr. Delaney through
the medium of a letter dated December 4, 1975, signed by Mr.
K. Jacobsen, Personnel Administrator (Exhibit D2).
(Note: The one year in position requirement was first pro
mulgated through the medium of PSC Bulletin 75-20 dated 28
August 1975 [Exhibit D3]).
By a further letter dated December 15, 1975, also signed by
Mr. K. Jacobsen, Personnel Administrator, Mr. Delaney was
advised of his Notice of Right to Appeal. That letter begins as
follows:
We wish to inform you that as a result of the above-noted
competition the candidates listed below have been declared
successful in the order indicated:•
Michael J. Clark
Frans T. Heynen
Mr. Delaney appealed against any appointment being made
as a result of competition 75-TAX-CAL-CC-40 on the ground
that he was improperly screened out of the competition and
that, therefore, his qualifications for the available AU-1 posi
tion had not been assessed relative to the other candidates.
• Mr. Delaney's appeal was originally scheduled for hearing on
the 20th day of January 1976 and, at the request of the
appellant's representative, subsequently rescheduled for hearing
beginning at 0930 hours in the forenoon of Tuesday, January
27th in Calgary.
THE ISSUE
The representatives of the parties further agree that the basic
issue at stake in this hearing can be stated as follows:
Was Mr. Delaney lawfully and properly eliminated from
competition 75-TAX-CAL-CC-40 for the sole and only
reason that he had not occupied his current position or some
other parallel position classified in the same group and at
the same level for at least one year prior to the closing date
of this competition.
EXHIBITS
The representatives of the parties also agree that the material
listed on Annex A to this admission of facts and issue should be
filed and marked as exhibits at the commencement of the
hearing.
While the facts set out in this document are relevant and
accurate for the purpose of hearing and determining his griev
ance, they are not necessarily exhaustive. That being so, the
parties reserve the right to lead additional evidence at the time
this appeal is heard.
Finally, the parties are agreed that in addition to oral
argument either or both parties may, if they so elect, file a
written submission and in the event that either or both parties
file a written brief, then that brief shall be accepted into
evidence and marked as an exhibit.
Dated at Calgary this 27th day of January, 1976.
Signed on behalf of the Department
Mr. K. Jacobsen
Signed on behalf of the Appellant
Mr. H. Edward Done
The Appeal Board dismissed the appeal. The
Chairman concluded her reasons for dismissal in
these words:
Since the Selection Standards for AU 1 positions contained
the Basic Requirement quoted above and since there is no
dispute that the employee was currently occupying a PM 3
position to which he was appointed on August 4, 1975, less than
one year prior to the closing date for receipt of applications in
the competition, the Appeal Board cannot fault the Selection
Board for eliminating the appellant from further consideration
and the Appeal Board will not intervene in this case.
The basic requirement for the position of AU-1
Business Auditor, which appeared on the competi
tion poster and by virtue of which Mr. Delanoy
was eliminated from the competition, was, as the
admission of facts and issue indicates, first pro
mulgated by means of Public Service Commission
Bulletin No. 75-20, dated August 28, 1975. The
requirement was enacted as an amendment to the
Public Service Commission Selection Standards.
The amendment was approved by the Public Ser
vice Commission by endorsement of approval on a
memorandum to it, Public Service Commission
File No. 600-200. The subject of the amendment is
expressed as being "Amendment to Selection
Standards—AC, AG, AR, AU, BI, CH, DE, ES,
ED, EN, FO, HR, HE, LA, LS, MD, MT, NU,
OP, PH, PC, PS, SG, SE, SW, UT, VS Groups".
These are the occupational groups in the Adminis
trative and Foreign Service and the Scientific and
Professional categories of the Public Service.
The reason given by Mr. P. D. Drouillard, pre
sumably an official of the Commission, for
requesting approval by the Commission of the
amendment was set out in a memorandum to the
Commission, File No. 600-200, in these words:
With a view to ensuring that the on-the-job experience of
employees is of a standard level, and that excessive mobility not
in the best interests of the Public Service is curbed, the
following amendment to the Selection Standards is submitted
for your consideration, to effect [sic] those Groups listed above.
The amendment, which was in fact approved by
the Commission, was as follows:
The text of the amendment to be inserted as a note in each
Selection Standard is as follows:
NOTE: An employee must have spent a minimum of one year
in his/her current position or a position at the same
level of classification to be eligible to be appointed to
a position in this occupational group which has a
maximum rate of pay that is higher than the max
imum rate of pay of the position he/she is currently
occupying.
In a further memorandum to the Commission,
appearing as file No. 600-300, it was stated:
Recently you approved an amendment to the Selection Stand
ards regarding one year in level for promotions, in certain
categories. During the preparation of the Bulletin to put this
amendment into effect, it became apparent that the wording of
the amendment, per se, could be improved upon.
Therefore, in order to hopefully minimize confusion, the word
ing of a portion of the sentence has been modified as below;
Original Modified
NOTE: An employee must NOTE: An employee must
have spent a minimum of one have spent a minimum of one
year in his/her current posi- year in his/her current posi
tion or a position at the same tion or in a position classified
level of classification to be in the same group and at the
eligible to be appointed to a same level to be eligible to be
position in this occupational selected for appointment to a
group which has a maximum position in this occupational
rate of pay that is higher than group which has a maximum
the maximum rate of pay of rate of pay that is higher than
the position he/she is current- the maximum rate of pay of
ly occupying. the position he/she is current
ly occupying.
Your approval is requested.
Approval of the modification as requested was
granted. The approval is dated August 8, 1975.
Sections 10, 11 and 12 of the Public Service
Employment Act provide:
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in the
best interest of the Public Service.
11. Appointments shall be made from within the Public
Service except where, in the opinion of the Commission, it is
not in the best interests of the Public Service to do so.
12. (1) The Commission may, in determining pursuant to
section 10 the basis of assessment of merit in relation to any
position or class of positions, prescribe selection standards as to
education, knowledge, experience, language, age, residence or
any other matters that, in the opinion of the Commission, are
necessary or desirable having regard to the nature of the duties
to be performed, but any such selection standards shall not be
inconsistent with any classification standard prescribed pursu
ant to the Financial Administration Act for that position or any
position in that class.
(2) The Commission, in prescribing selection standards
under subsection (1), shall not discriminate against any person
by reason of sex, race, national origin, colour or religion.
(3) The Commission shall from time to time consult with
representatives of any employee organization certified as a
bargaining agent under the Public Service Staff Relations Act
or with the employer as defined in that Act, with respect to the
selection standards that may be prescribed under subsection (1)
or the principles governing the appraisal, promotion, demotion,
transfer, lay-off or release of employees, at the request of such
representatives or of the employer or where in the opinion of
the Commission such consultation is necessary or desirable.
The authority granted to the Commission by
section 12 to prescribe selection standards is an
authority to prescribe standards for the purpose of
selecting, from qualified candidates, the person or
persons who best merit appointment, having
regard to the duties to be performed by the occu
pant of the position to be filled. The Commission
has, of course, a discretion in the prescription of
standards, but every standard prescribed must
relate to the purpose to be served, otherwise it is
not a selection standard within the meaning of the
section.
It is really not possible to perceive a rational link
between the so called basic requirement involved
in this case and selection according to merit of the
candidate for appointment best qualified to fill the
advertised position. The stipulated requirement of
at least one year spent in a candidate's current
position, or in a position classified in the same
group and at the same level, could be met by
service in a position unrelated to the position under
competition either in respect of duties to be per
formed or qualities required. On the other hand, a
well qualified candidate who had served for slight
ly less than a year in a clearly related position
would be automatically eliminated. Such a
requirement, whatever else it may be, is not a
standard related to merit selection. The facts of
this case amply illustrate that the basic require
ment not only does not serve the purpose of merit
selection, but may frustrate it.
It is not necessary in this case to consider wheth
er and, if so, to what extent the Public Service
Commission can establish qualifications for posi
tions in the Public Service. The Commission was
purporting to act in reliance on its authority to
prescribe selection standards under section 12 of
the Public Service Employment Act, and for the
reason given in the previous paragraph the require
ment in question was not a selection standard.
Indeed, it may well be inferred from the reasons
for the decision in Bambrough v. Appeal Board
established by the Public Service Commission'
that section 12 confers no authority to establish
qualifications for a position as opposed to prescrib
ing standards for selecting a candidate who best
meets qualifications otherwise determined. And,
furthermore, there was no question here of a par
ticipation by the Commission, together with the
Department, in an elaboration of qualifications for
the position. There is thus no need to consider the
precise nature or the range of the implied power of
the Commission, in relation to the elaboration of
qualifications, to be inferred from the Commis
sion's responsibility for appointment according to
merit under sections 5, 8 and 10 of the Public
Service Employment Act, the implied power
referred to in the Bambrough case.
The Appeal Board expressed the opinion that it
had no jurisdiction to make a finding on the
legality of the disputed basic requirement. This
question of jurisdiction was not pursued in this
Court. It would seem, however, that the question
of the validity of the requirement was directly
involved in the appeal which was properly before
3 [1976] 2 F.C. 109.
the Board under section 21 of the Public Service
Employment Act, and that the Board ought to
have taken a position on the question so involved.
Such a position would, of course, be reviewable in
an application under section 28 of the Federal
Court Act to review and set aside the Appeal
Board's decision on the appeal.
I would grant the application and set aside the
decision of the Appeal Board complained of. I
would refer the matter back to the Appeal Board
for disposition on the basis that the basic require
ment in question is invalid.
* * *
JACKETT C.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.