A-440-81
Attorney General of Canada (Applicant)
V.
Karen Sharpe et al. (Respondents)
Court of Appeal, Heald, Urie JJ. and Kerr D.J.—
Ottawa, May 27 and June 22, 1982.
Judicial review — Applications to review — Public Service
Commission — Appeals pursuant to s. 21(6) of the Act against
lateral transfer to new position of person not on eligible list for
appointments in prescribed area — Commission cannot trans
fer person to similar position in area without reference to list
while it remained validly in existence — Application dismissed
— Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 8,
10, 13, 17, 18, 21 — Public Service Employment Regulations,
C.R.C., c. 1337, ss. 5, 21 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
These are appeals pursuant to paragraph 21(b) of the Public
Service Employment Act against the appointment of Dorothy
Tickner without competition, by persons who perceived that
their opportunities for advancement had been prejudicially
affected. The Public Service Commission conducted a closed
competition, limited to employees in the Barrie district, which
established an eligible list for anticipated vacancies. Tickner
had been working in Guelph, but sought a lateral transfer to
Owen Sound, which was in the Barrie district. She was trans
ferred to a newly-created position in Owen Sound. Since she
was transferred from outside the normal area of competition,
the Public Service Commission required that appeal notices be
posted. Authority to appoint Tickner was granted, subject to
the right of appeal of the respondents, who were on the eligible
list. Respondents' appeal was allowed, which decision is now
under review.
Held, the application is dismissed. Having established the
eligible list, the Public Service Commission cannot, as a matter
of law, ignore it by filling a position by someone who could not
participate in the competition. To do so would be prejudicial to
the opportunity for advancement of those persons who, in good
faith, participated in the competition and whose names appear
on the list. The lateral transfer was a calculated, though
thoroughly understandable, circumvention of the rules estab
lished to ensure adherence to the merit principle.
CASE JUDICIALLY CONSIDERED
APPLIED:
Kelso v. Her Majesty the Queen, [1981] 1 S.C.R. 199.
APPLICATION for judicial review.
COUNSEL:
Walter L. Nisbet, Q.C., for applicant.
Maurice W. Wright, Q.C. and A. J. Raven for
respondents.
Dorothy Tickner (herself) for interested
party.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
URIE J.: This application is brought pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10 to review and set aside a
decision of the Public Service Commission Appeal
Board made as a result of an appeal to it pursuant
to section 21 of the Public Service Employment
Act, R.S.C. 1970, c. P-32 against the selection of
one Dorothy Tickner as a PM-2, Employment
Counsellor, Canada Employment and Immigration
Commission, Owen Sound, Ontario.
The relevant facts are these:
On or about April 17, 1980, the Canada
Employment and Immigration Commission ("the
Commission") announced, and thereafter conduct
ed, a closed competition in order to fill anticipated
vacancies for PM-2, Employment Counsellor, posi
tions in the Barrie District of the Commission. As
a result of the competition an eligible list was
established. Four of the respondents herein,
namely, Karen Sharpe, Gertrude Dickson,
Dorothy Howell and Patricia Sylvester were
placed as numbers 2, 3, 5 and 6, respectively, on
the eligible list.
Subsequent to the establishment of the eligible
list a vacancy occurred in a PM-2, Employment
Counsellor, position in the Parry Sound office of
the Commission. Each of the first three candidates
on the list were offered the position and declined to
accept it with the result that candidate No. 4 on
the list was offered and accepted the appointment.
Dorothy Tickner had occupied a position as a
PM-3, Special Programs Counsellor, at the
Canada Manpower Centre in Hamilton, Ontario.
On March 8, 1978 Mrs. Tickner had submitted a
request for a lateral transfer to the Owen Sound
Canada Manpower Centre for the stated reason
that her husband was planning to retire in the
following month to take up residence at their home
in Owen Sound and she wished to join him there.
Since that transfer could not be effected, Mrs.
Tickner, from time to time renewed her request for
transfer and, effective as of May 19, 1980, accept
ed a voluntary demotion to a PM-2, Employment
Counsellor, position at the Guelph Canada Man
power Centre because it reduced the weekly com
muting time to and from home at Owen Sound.
Notwithstanding this appointment, Mrs. Tickner
continued to submit requests for a transfer to the
position in Owen Sound. On June 2, 1981, Mrs.
Tickner was transferred to a newly created posi
tion at the Owen Sound Canada Employment
Centre.
It should be noted that Guelph is not within the
Barrie District of the Commission and that the
competition leading to the eligible list above
referred to was limited to employees from within
the Barrie District. Mrs. Tickner thus was not
eligible for the competition with the result that her
name did not and could not have appeared on the
eligible list. It is further worthy of note, and it is
not disputed, that Mrs. Tickner is a valued and
well-qualified employee whose qualifications and
ability to perform the duties of the position at
Owen Sound have not been questioned. As Mrs.
Tickner's transfer was from outside the normal
area of competition, the Public Service Commis
sion required that appeal notices be posted unless
the Commission could satisfy the Public Service
Commission that there were sufficient compassion
ate reasons to waive appeal rights and that the
opportunity for advancement of the employees
within the area of competition would not be pre-
judicially affected. Apparently the Public Service
Commission was not so satisfied and the right of
the respondents herein to appeal was confirmed.
According to a statement filed in evidence by the
Commission, authorization to appoint Mrs.
Tickner to the Owen Sound position was given on
May 28, 1981, subject to any appeals which might
be brought before a prescribed date.
An Appeal Board was established by the Public
Service Commission chaired by Anna Stevenson,
Q.C., who rendered her decision on July 23, 1981
whereby she allowed the appeals of the respond
ents. It is from that decision that this section 28
application is brought.
All parties to the application agreed that there
are two issues:
(1) Did the Public Service Commission Appeal
Board err in finding that an eligible list for
positions at the PM-2 level having been estab
lished, the Commission could not transfer an
employee not on the list in priority to those
whose names appeared on the eligible list? and
(2) Alternatively, was the proposed transfer of
Dorothy Tickner an "appointment" within the
meaning of the Public Service Employment Act
so as to enable the respondents to appeal the
selection of Mrs. Tickner to fill the newly creat
ed position of PM-2 Employment Counsellor at
the Barrie, Ontario, Canada Employment
Centre?
The sections of the Public Service Employment
Act ("the Act") which are relevant in the disposi
tion of the issues raised in this application are
sections 8, 10, 13, 17, 18 and 21. They read as
follows:
8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or from
within the Public Service of persons for whose appointment
there is no authority in or under any other Act of Parliament.
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 interests of the Public Service.
13. Before conducting a competition, the Commission shall
(a) determine the area in which applicants must reside in
order to be eligible for appointment; and
(b) in the case of a closed competition, determine the part, if
any, of the Public Service and the occupational nature and
level of positions, if any, in which prospective candidates
must be employed in order to be eligible for appointment.
17. (1) From among the qualified candidates in a competi
tion the Commission shall select and place the highest ranking
candidates on one or more lists, to be known as eligible lists, as
the Commission considers necessary to provide for the filling of
a vacancy or anticipated vacancies.
(2) An eligible list is valid for such period of time as may be
determined by the Commission in any case or class of cases.
(3) When establishing an eligible list in the case of a closed
competition, the Commission shall place the qualified candi
dates thereon in order of merit.
(4) When establishing an eligible list in the case of an open
competition, the Commission shall, after complying with sec
tion 16 and after conducting such further investigations as it
considers necessary, proceed in accordance with the following
principles:
(a) persons who come within paragraph 16(3)(a) and who
are qualified shall be placed, in order of merit, ahead of other
successful candidates;
(b) persons who come within paragraph 16(3)(b) and who
are qualified shall be placed, in order of merit, on the list
immediately following any candidates mentioned in para
graph (a) of this subsection;
(c) persons who come within paragraph 16(3)(c) and who
are qualified shall be placed, in order of merit, after any
candidates mentioned in either paragraph (a) or (b) of this
subsection; and
(d) persons who do not come within paragraph 16(3)(a),(b)
or (c) and who are qualified shall be placed, in order of
merit, after any candidates who come within those
paragraphs.
(5) Nothing prescribed by or under this or any other Act as
to the age limit and physical requirements with respect to any
appointment to the Public Service applies to a person who
comes within paragraph 16(3)(a) or (b), if the Commission
certifies that he is of such an age and in such a satisfactory
physical condition that he is then able to perform the duties of
the position and will probably be able to continue to do so for a
reasonable period after his appointment.
18. Where an appointment under this Act is to be made to a
position by competition, the appointment shall be made from
an eligible list established for that position or for positions of a
similar occupational nature and level, but where such list is
exhausted, the appointment may be made from an eligible list
established for positions of a similar occupational nature at a
higher level.
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.
Sections 5 and 21 of the Public Service
Employment Regulations, C.R.C., c. 1337, must
also be considered. They read as follows:
5. Every appointment pursuant to section 10 of the Act shall
be made, in accordance with selection standards, by one of the
I following processes of personnel selection:
(a) an open competition between persons who
(i) respond to public notice, or
(ii) are identified by means of an inventory;
(b) a closed competition between employees who
(i) respond to notice, or
(ii) are identified by means of an inventory; or
(c) the consideration of such material and the conduct of
such examinations, tests, interviews and investigations as the
Commission considers necessary to establish the merit of a
candidate for appointment where the Commission is of the
opinion that a competition would not be in the best interests
of the Public Service and the appointment is one of the
following, namely,
(i) the appointment of an employee to a position for which
the maximum rate of pay does not exceed the maximum
rate of pay for the position occupied by the employee
immediately prior to the appointment,
(ii) the appointment of an employee to a reclassified
position that the employee occupied immediately prior to
the reclassification of the position,
(iii) the promotion of an employee in a position to which
he was appointed at a level lower than the full level of the
position,
(iv) the appointment for a specified period from outside
the Public Service to meet an emergency situation, and
(v) an appointment by the Commission, other than an
appointment described in subparagraphs (i) to (iv), that
the Commission considers to be in the best interests of the
Public Service.
21. Where an eligible list has been established for a particu
lar position, the person standing highest on the list who is
willing to accept the appointment shall be appointed to the
position.
As has been frequently pointed out the right of
appeal granted by section 21 of the Act is an
"appeal against the appointment" to a board
established by the Commission. In this case the
appeals were brought pursuant to paragraph 21(b)
against the appointment of Mrs. Tickner without
competition, by persons who perceived that their
opportunities for advancement had been prejudi-
cially affected thereby. It can thus be seen that the
first question to be resolved is whether or not the
respondents herein have the right to appeal the
appointment, bearing in mind that as a result of a
competition an eligible list had been established
for PM-2, Employment Counsellor, positions in
the Barrie District of the Commission, which
includes the Owen Sound Canada Employment
Centre, and that the respondents' names all
appeared on that list.
Section 10 of the Public Service Employment
Act directs that "Appointments to or from within
the Public Service shall be based on selection
according to merit . .. by competition or by such
other process of personnel selection designed to
establish the merit of candidates as the Commis
sion considers is in the best interests of the Public
Service." To fill PM-2, Employment Counsellor,
positions in the Barrie District, the Commission
apparently considered it in the best interests of the
Public Service to conduct a competition. This
resulted in the formulation of the eligible list
earlier referred to herein, as prescribed by
section 17 of the Act. Section 18 then requires that
an "... appointment under this Act ... shall be
made from an eligible list ...."
To resolve the first question it must be decided
whether a lateral transfer can override the require
ment that, where a competition has been held and
an eligible list established, appointments must be
made from that list. It is, of course, implicit that
that imperative exists so long as the list continues
to be valid or is not exhausted by appointments
therefrom. If the first question is answered in the
affirmative, then it must be decided whether the
simple lateral transfer of Mrs. Tickner from one
geographic location to another, to a position in
which the duties involved are identical to those of
the position in the location from which she was
transferred, can be characterized as an "appoint-
ment" so that the various provisions of the Act
earlier referred to herein apply or whether such a
transfer cannot be characterized as an "appoint-
ment" so that the transfer can be effected without
compliance with those provisions.
It is not without relevance in endeavouring to
answer these questions to recall what was said by
Mr. Justice Dickson in the recent judgment of the
Supreme Court of Canada in Kelso v. Her Majes
ty the Queen,' viz:
No one is challenging the general right of the Government to
allocate resources and manpower as it sees fit. But this right is
not unlimited. It must be exercised according to law. The
government's right to allocate resources cannot override a
statute ....
There is no question that as a result of the
competition an eligible list had been established
for PM-2, Employment Counsellor positions in the
Barrie District of which the Owen Sound Canada
Employment Centre is a part. That being so it
would seem to follow that when a newly-created
PM-2, Employment Counsellor position opened up
it should, in normal circumstances, be offered to
the persons on the eligible list in the order of their
ranking. Assuming that the first person to which it
was offered, or failing acceptance by that person,
any other person on the list in order of ranking
accepted, such person would be appointed to the
position. As I understood him, counsel for the
applicant did not dispute that this would be the
way the position at Owen Sound would be filled in
normal circumstances and that filling the position
in that way would be an "appointment" within the
meaning of the Act.
In the case of a transfer of a PM-2, Employ
ment Counsellor, from one geographic location to
another, (in this case, from Guelph to Owen
Sound) counsel said that such logic would not
prevail. In his submission, as the holder of the
PM-2, Employment Counsellor, position at
Guelph, Mrs. Tickner had already been appointed
to that position and her transfer from Guelph to
Owen Sound did not require another appointment
since the appointment to the position in Guelph
had been to an identical PM-2 position to that in
Owen Sound. This resulted, in his submission,
' [1981] 1 S.C.R. 199, at p. 207.
from the right of the employer "to allocate
resources and manpower" (as referred to by Dick-
son J., in the Kelso case, supra) within a given
classification of position, from place to place, with
out regard to the existence of an eligible list
encompassing the very position to which the trans
fer was made.
I am unable to agree with this submission. I can
quite appreciate the desirability of fulfilling the
wishes and needs of a valued employee if that can
be accomplished according to law. The applicable
law in this case is the Public Service Employment
Act. Pursuant to that statute the Public Service
Commission embarked on a program to fill given
positions in a district, as vacancies occurred, by
conducting a competition with a view to creating
an eligible list. Having established the list I do not
think that, as a matter of law, it can be ignored by
filling a position by someone (no matter how
meritorious her credentials might be) who did not.
and could not, participate in the competition. Sec
tion 10 requires that appointments be made
according to merit. One way that the Act permits
the ascertainment of merit is by conducting a
competition with a view to the establishment of an
eligible list for the filling of particular positions.
Having embarked on that procedure to determine
merit for such positions, I am of the opinion that
the procedure must be adhered to. Not to do sc
would be prejudicial to the opportunity for
advancement of those persons who, in good faith.
participated in the competition and as a result of
which whose names appear on the list. The lateral
transfer was a calculated, though thoroughly
understandable, circumvention of the rules estab
lished to ensure adherence to the merit principle,
Therefore, the Appeal Board correctly held, in my
view, that the respondents herein had the right tc
appeal the selection of Mrs. Tickner to fill the
Owen Sound vacancy because, as found by the
Commission, their opportunity for advancement
had been adversely affected.
It follows, then, for the same reasons, that the
Owen Sound position should have been offered tc
those persons whose names appeared on the eli
gible list, the respondents herein, in order of merit
and the Appeal Board made no error in so finding.
In reaching that conclusion, it is unnecessary, in
the circumstances of this case, to decide whether
or not the transfer constituted an appointment and
I expressly refrain from commenting on the find
ing of the Appeal Board that a position can be
filled only by an appointment whether that posi
tion is filled from an eligible list or by way of
lateral transfer. The nub of this case is that a
position was filled by lateral transfer by a person
whose name did not and could not, by reason of
inability to meet the qualifications for the competi
tion, appear on an eligible list. The existence of
that list precluded filling a vacancy within the
prescribed area without reference to the list while
it remained validly in existence. Whether, after it
ceased to exist, for whatever reason, a lateral
transfer would constitute an appointment, is a
subject upon which I am not required to comment
in the circumstances of this case.
For all of the foregoing reasons, I would dismiss
the section 28 application.
HEALD J.: I concur.
KERR D.J.: I agree with the reasons for judg
ment of Urie J. and with his proposed disposition
of the section 28 application.
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.