T-3907-81
Gary Blachford (Plaintiff)
v.
Public Service Commission of Canada and Canada
Employment and Immigration Commission
(Defendants)
Trial Division, Marceau J.—Montreal, February
23; Ottawa, March 12, 1982.
Judicial review — Equitable remedies — Declarations —
Plaintiff appealed to Public Service Commission co-worker's
appointment without competition — S. 21 of Public Service
Employment Act provides that where appointment without
competition, every person whose opportunity for advancement,
in opinion of Commission, has been prejudicially affected may
appeal appointment to board established by Commission —
Commission held plaintiff's opportunity for advancement not
prejudicially affected — Plaintiff seeks declaration that op
portunity for advancement prejudicially affected by appoint
ment of co-worker, that recommendation made by Public
Service Commission erroneous, that plaintiff entitled to
appointment and to reimbursement for salary loss — Alterna
tively plaintiff seeks declaration that he is entitled to have case
heard by board established under s. 21 of Act — Action
dismissed — Court does not have jurisdiction to grant first
four declarations sought as Commission has "exclusive right
and authority to make appointments to or from within the
Public Service" under s. 8 of Act and determination of appeal
under s. 21 of Act is its sole jurisdiction — Alternative
declaration refused since "opinion" made condition precedent
to appeal under s. 21 is that of Commission, not that of Court
— Court has jurisdiction to review "opinion" under s. 18 of
Federal Court Act and to grant certiorari provided that condi
tions for awarding certiorari exist — Whether Commission
acted in `perverse or capricious manner and without regard for
the material before it" — Reasons of Commission indicate it
considered departmental records and intention to determine
date and location of appointment — Commission justified in
looking at matter as it did — Public Service Employment Act,
R.S.C. 1970, c. P-32, ss. 8, 21 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Nenn v. Her Majesty The Queen, [1981] 1 S.C.R. 631;
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602.
ACTION.
COUNSEL:
Janet Cleveland for plaintiff.
James Mabbutt for defendants.
SOLICITORS:
Rivest, Castiglio, Castiglio, Lebel &
Schmidt, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This action for declaratory relief
against the Public Service Commission of Canada
("the Commission") and the Canada Employment
and Immigration Commission (CEIC) has to be
put into context for its meaning and purpose to be
properly understood. Following the appointment of
a co-employee with the CEIC to a position identi
fied as EIC-6024 and entitled Adjudicator
(PM-4), the plaintiff lodged an appeal with the
Commission under section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32, (herein-
after "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 appointment having been made without com
petition, paragraph (b) above was applicable, so
the first question to be determined by the Commis
sion was whether the plaintiffs opportunity for
advancement had been prejudicially affected. The
Commission formed the opinion that it had not. It
is that preliminary—although decisive—finding of
the Commission that is under attack in this action.
The plaintiff disputes the validity of such a finding
and contending that he was the one who should
have been appointed, he prays the Court to make
the following declarations:
DECLARE that the Plaintiff's opportunity for advancement was
prejudicially affected by the appointment of Mrs. Pat Ellis to
position EIC 6024 in Mirabel;
DECLARE that the recommendation made by the Public Service
Commission on January 6, 1981 is erroneous, unfounded and
without effect;
DECLARE that the plaintiff was entitled to be appointed to
position EIC 6024 as adjudicator at Mirabel on or about July
30, 1979;
DECLARE that the plaintiff is entitled to be reimbursed for any
loss of salary or other advantages which he has suffered by
reason of the Public Service Commission's failure to appoint
him as adjudicator to position EIC 6024 on or about July 30,
1979;
OR, SUBSIDIARILY AND WITHOUT PREJUDICE TO THE CON
CLUSIONS OUTLINED IN THE LAST TWO PARAGRAPHS:
DECLARE that the plaintiff is entitled to have his case heard
and decided on the merits by an Appeal Board pursuant to
Section 21 of the Public Service Employment Act;
It is obvious to me—and counsel for the plaintiff
agreed during argument—that the Court could not
even consider the granting of any of the first four
declarations set out in the prayer for relief. The
Commission has the "exclusive right and authority
to make appointments to or from within the Public
Service" (section 8 of the Act) and the determina
tion of an appeal under section 21 of the Act is its
sole jurisdiction. It is as well obvious to me that
the other declaration sought subsidiarily could not
be granted in the form suggested since the "opin-
ion" made a condition precedent to an appeal
under section 21 of the Act is that of the Commis
sion, not that of the Court.
I am prepared to accept, however, that the
"opinion" to be expressed by the Commission
under paragraph 21(b) of the Act involved the
making of a decision which, although administra
tive in nature and a part of its normal administra-
tive duties (Nenn v. Her Majesty The Queen'), is
subject to review by this Court in the exercise of
the jurisdictional supervisory powers vested in it by
section 18 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, a review that could give rise to
a remedy in the nature of certiorari. The plaintiff
may be entitled to a declaration that the decision
was improperly made and that the matter should
be referred back to the Commission for reconsider
ation. But, to be entitled to such an extraordinary
remedy, the plaintiff must of course show that the
conditions required for awarding certiorari exist.
There is of course no question that the Commis
sion, in making the decision here under attack,
acted within its jurisdiction and powers, in strict
accordance with the law and in good faith. There
is no suggestion of any kind that the Commission
may have committed a breach of the fairness
doctrine adopted by the recent well-known deci
sions of the Supreme Court (Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners
of Police, [1979] 1 S.C.R. 311; Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1
S.C.R. 602). The plaintiff's allegation in support
of his attack is that a proper analysis of the facts
could not lead to the conclusion that his advance
ment had not been prejudicially affected by the
appointment, so that the Commission's finding
could only have been made "in a perverse and
capricious manner and without regard for the ma
terial before it". The allegation is clothed in very
strong words but it does not go farther than put
ting into question an appreciation of the facts put
before the Commission, and I have strong reserva
tions as to its sufficiency to furnish a valid ground
for awarding certiorari. But in any event, the
allegation is to me altogether unjustified.
I see no reason for going through the facts in
detail. They are thoroughly and accurately
reviewed by the Commission in the lengthy memo
randum it delivered in support of its decision. A
few explanations and a brief look at some passages
of the Commission's memorandum should suffice.
The case as it presented itself to the Commission
raised one basic question the answer to which
could only be determinative: where was the posi-
' [1981] 1 S.C.R. 631.
tion located when the appointment was made, and
since such appointment, although not formally
made, was considered to have been required
because the language requirements of the position
had been changed, the question was where was the
position located when its language requirements
were changed? If the position was then located at
Mirabel because its transfer from Mississauga to
Mirabel had already taken place, the plaintiff was
entitled to appeal, but if the position was then still
at Mississauga, the plaintiff had no reason to
complain. The CEIC explained that its decision to
change the language requirements of the position
had been made and acted upon prior to its decision
to transfer the position to Mirabel with its incum
bent. The explanation was corroborated by docu
mentary evidence, but the problem was that the
Official Language Input Form issued to confirm
the change in the language requirements had been
inaccurately completed in that either the date
mentioned for the change to take effect or the
location of the position referred to, was wrong: the
Department should have required an amendment
but it had simply neglected to do so. The Commis
sion resolved the issue as follows:
5. From the facts outlined in the various subparagraphs includ
ed in paragraph 5 under "Background" in this memorandum, it
would appear that the appointment in question took place on
July 3, 1979 at Mississauga, Ontario. In coming to this conclu
sion the Commission is aware that departmental records show
that Mrs. Ellis, while having requested a transfer to Mirabel,
was in fact to be on a "rotational assignment" from July 3,
1979 to August 31, 1979 at Mirabel. It was also the intention
of the department to formally transfer Mrs. Ellis to Mirabel
effective July 30, 1979 due to the requirement of travel regula
tions so as to reimburse her for her expenses until she had
formally moved to Mirabel.
6. The Commission is also mindful of the fact that the official
languages documentation (OLIF) was not properly amended to
reflect the intentions of management in this case but such an
error does not negate the intent that the department had to
amend the effective date of the transfer to Mirabel. It remains
however that the linguistic requirements of Mrs. Ellis' job were
amended on July 3, 1979 while she was still appointed to a
position in Mississauga.
7. In deciding this matter, if the Commission was of the opinion
that the department had purposely manipulated the amend
ment of the effective date with the possibility of an appeal
action in mind, it may very well have come to a different
conclusion on this particular matter. However, there is no
evidence that this in fact is the case.
There was sufficient justification for the Com
mission to look at the matter as it did, and it
certainly cannot be said that in arriving at its
conclusion it acted "in a perverse or capricious
manner and without regard for the material before
it".
This action is unfounded and it shall be dis
missed 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.