A-175-81
Attorney General of Canada (Applicant)
v.
Haig Bozoian (Respondent)
Court of Appeal, Thurlow C.J., Jerome A.C.J. and
Kerr D.J.—Ottawa, April 19 and May 7, 1982.
Judicial review — Applications to review — Public Service
— Appeal Board decision allowing respondent's appeal against
appointment made without competition — Respondent and
other candidates unqualified to fill position — Incumbent,
seeking lateral transfer, appointed without competition —
Respondent's appeal against appointment allowed by Board,
on ground of appearance of procedural unfairness not serving
best interests of Public Service — Whether Board erred —
Failure of Board to consider relative merits of persons whose
opportunities for advancement prejudiced by appointment
without competition — Dissenting opinion (in part): Board not
entitled to substitute its opinion for that of Department —
Application granted — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 10, 21 — Public Service Employment
Regulations, C.R.C. 1978, Vol. XIV, c. 1337, s. 5.
Application to review and set aside the decision of a Public
Service Appeal Board which allowed an appeal brought by the
respondent under section 21 of the Public Service Employment
Act. A competition was held to fill a position; however, all the
candidates, including the respondent, failed to meet the mini
mum knowledge requirements. Following that result, the
incumbent, who had sought a lateral transfer, was appointed
without competition pursuant to paragraph 5(c) of the Public
Service Employment Regulations. Respondent appealed; the
Appeal Board, having found that there had been an appearance
of want of procedural fairness, allowed the appeal on the
ground that the best interests of the Public Service had not
been served. Pursuant to section 10 of the Act, appointments
are based on selection according to merit and made by competi
tion or other process of personnel selection designed to establish
the merits of candidates as the Commission considers is in the
best interests of the Public Service. Respondent construes the
Board's decision as being to the effect that the merit principle
had not been observed in making the selection. The issue is
whether the Board erred in making its decision.
Held, the application is granted, the Board's decision is set
aside and the matter referred back to the Commission for
determination by an appeal board. Respondent's interpretation
of the Board's reasons is not sustainable. The Board found that
there was an appearance of procedural unfairness due to the
fact that the earlier competition had not been extended or that
a new competition had not been held. However, it left unan
swered a critical question, i.e. whether the selection without
competition took into account the relative merits of the persons
whose opportunities for advancement would be prejudiced by
the appointment. The answer is "no". The results achieved by
the candidates in the examination could not serve as a basis for
comparison of their qualifications with those of the person
selected as the latter did not enter the competition. Moreover,
the case put forward by the Department contains no suggestion
that the qualifications of anyone but the incumbent were
considered in the selection process or that his qualifications
were compared with those of any of the persons whose oppor
tunities for advancement would be prejudiced.
Per Kerr D.J. dissenting in part: The Appeal Board exceeded
its jurisdiction and erred in law in substituting its opinion for
that of the Department and holding that the competition
process should have been continued or extended to seek a
second series of candidates. The Department, on consideration
of the result of the competition and of the incumbent's qualifi
cations, rightfully exercised its authority under paragraph 5(c)
of the Regulations. Nothing in the record indicates that the
Department did not act reasonably and in good faith, or that
the appointment was not made "according to merit". The
Greaves case is to be distinguished as the appointment in that
case was made without any competition having been held.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Attorney General of Canada v. Appeal Board established
by the Public Service Commission, [1982] 1 F.C. 803;
Attorney General of Canada v. Greaves et al., [1982]
1 F.C. 806.
APPLICATION for judicial review.
COUNSEL:
E. R. Sojonky for applicant.
M. W. Wright, Q.C. and A. J. Raven for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
decision of an Appeal Board under section 21 of
the Public Service Employment Act, R.S.C. 1970,
c. P-32, which allowed an appeal by the respond
ent against the appointment of one Vince Dunne to
the position of Superintendent of Traffic Opera-
tions, classified at the PM 3 level with the Depart
ment of National Revenue (Customs and Excise)
at the area port of Pacific Highway, B.C. The
selection of Mr. Dunne for the position was made
without competition under subparagraph 5(c)(i) of
the Public Service Employment Regulations,
C.R.C. 1978, Vol. XIV, c. 1337. In allowing the
appeal, the Appeal Board concluded that:
The appearance of a want of procedural fairness in the circum
stances of this case leads me to conclude that the best interests
of the Public Service have not been served by selecting Mr.
Dunne for appointment without competition and I allow the
appeal against his appointment.
Before setting out the facts it will be convenient
to set out the applicable statutory provisions.
Regulation 5 prescribes alternative selection proce
dures. It provides:
5. Every appointment pursuant to section 10 of the Act shall
be made, in accordance with selection standards, by one of the
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,
With respect to the basis of selection for
appointment, section 10 of the Act provides:
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, ând 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.
In Attorney General of Canada v. Greaves et al.
[[1982] 1 F.C. 806], this Court held that the
concept of "selection according to merit" involves
not merely that a successful candidate be qualified
for the appointment but that he be the best quali
fied of the candidates available for appointment.
As between candidates, therefore, what is required
is not merely an assessment of the qualifications of
the candidates but as well an assessment of their
relative merits.
When a candidate has been selected for appoint
ment section 21 of the Act comes into play. It
provides:
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 basic subject matter of the inquiry that is
required to be made by a board when an appeal is
asserted under this section is whether the selection
has been made according to merit as required by
section 10. When, therefore, an appellant is being
heard pursuant to the section it is open to him to
show in any way that he can that the selection has
not been made "according to merit" as required by
section 10. One conceivable approach would be to
show that the selected candidate could not possibly
be the best qualified of the candidates or did not
meet the requirements for selection whether in
terms of personal qualifications or of eligibility for
consideration. Another approach might be to chal
lenge the way the selection was made so as to show
that the selection process itself was illegal or,
though legal as a process, was not carried out in a
manner calculated to identify the most meritorious
candidate. In such an approach it must be remem
bered that, under section 10,
(1) the selection is not necessarily to be made
by competition but is to be made by competition
or other process of personnel selection designed
to establish the merit of candidates, and
(2) the decision as to which type of selection
process is to be followed is to be made by the
Commission on the basis of which process it
considers is in the best interests of the Public
Service.
In Attorney General of Canada v. Appeal Board
established by the Public Service Commission
[[1982] 1 F.C. 803], this Court held that an
appeal board cannot, on an appeal under section
21 against an appointment made without competi
tion pursuant to paragraph 5(c) of the Regula
tions, substitute its opinion for that of the Com
mission or of its delegate to determine whether a
competition would not be in the best interests
of the Public Service. That, however, leaves
untouched the requirement that the selection when
made, and by whatever process of selection it is
made, be made according to merit. (Attorney Gen
eral of Canada v. Greaves et al., supra.)
I turn now to the facts. They are recited as
follows in the judgment of the Appeal Board:
The facts of the case appear not to be in dispute. In Septem-
ber 1980, the Department initiated a competition to fill the
position of Superintendent Traffic Operations. Prior to the
competition, the appellant had requested a "lateral transfer"
from his present position which was also classified at the PM 3
level to a Superintendent position. However, it was anticipated
that a number of employees would be interested in the position
of Superintendent of Traffic Operations and O. McCrae, the
manager responsible for the position, expressed the view that it
would be better to conduct a competition in order to identify
someone for appointment. Consequently, no consideration was
given to the requests for "lateral transfers" that had been
submitted. The competition was conducted and the qualifica
tions of five candidates, including the appellant, were assessed
on the basis of their responses to a series of preset questions at
an interview. None of the five candidates were considered to
have demonstrated the minimum knowledge required to effi
ciently perform the duties of the position and all were eliminat
ed from the competition. All candidates were advised that the
competition had not been fruitful in terms of identifying some
one for appointment by letter dated December 10, 1980.
On December 15, 1980, V. Dunne who occupied a position of
Training and Development Advisor, classified at the PE 2 level,
requested a "lateral transfer" to the position of Superintendent
Traffic Operations. Mr. McCrae knew Mr. Dunne because he
had supervised him from 1974 to 1976 when Mr. Dunne
occupied a position similar to the position to be filled. Mr.
McCrae was also aware that since 1976 Mr. Dunne had been a
Training and Development Coordinator and had been active in
developing technical training programs for Customs Inspectors
and Superintendents. On the basis of his personal knowledge of
Mr. Dunne's qualifications, Mr. McCrae concluded that he
could carry out the duties of the position to be filled and
selected him for appointment. Mr. McCrae prepared the fol
lowing narrative comments on Mr. Dunne:
Knowledge—Mr. V. J. Dunne previously encumbered a posi
tion titled Superintendent Outside Services, at the PM 3 level
at Pacific Highway during the period 1973-1976.
Mr. Dunne was under my general supervision from Septem-
ber 1974 through December 1976. During this period Mr.
Dunne demonstrated he possessed a very good knowledge of
the Customs Act, Excise Act, Excise Tax Act, Customs
Tariff and related regulations, directives and procedures as
well as those of other government agencies administered on
their behalf by Customs and Excise.
Abilities—Mr. Dunne has satisfactorily demonstrated the
ability to identify and resolve problems and implement
remedial action, apply the provisions of the collective agree
ments, communicate effectively, direct and train staff.
Personal Suitability—Mr. Dunne enjoys the ability to estab
lish and maintain good interpersonal working relations with
representatives of Customs House, brokerage firms, transpor
tation companies and members of other enforcement
agencies.
He is tactful and exercises discretion and good judgement.
The position Superintendent Traffic Operations to which he
is being appointed is almost identical to the former position
of Superintendent Outside Services.
The Department posted a "notice of right to appeal" the
appointment and Mr. Bozoian lodged an appeal.
This recital of the facts was followed by a recital
of the case raised on behalf of the respondent.
The appellant, through his representative, argued that Mr.
McCrae could not have fully assessed Mr. Dunne's qualifica
tions solely on the basis of his personal knowledge of Mr.
Dunne's past employment history. Firstly, Mr. McCrae had not
supervised Mr. Dunne for some four years and, therefore, his
knowledge of Mr. Dunne's skills was outdated. Secondly, the
position to be filled was a new position and there was no real
grounds on which Mr. McCrae could reasonably conclude
whether Mr. Dunne would be able to effectively perform the
duties.
As to these contentions, the Board said:
Secondly, was there sufficient information on the candidate
being considered for appointment from which it could be
concluded whether the candidate possessed the qualifications to
efficiently perform the duties of the position to be filled? These
questions arise with respect to the obligation that the regulation
appears to impose. In this case, the appellant has raised only
the question dealing with Mr. Dunne's qualifications. I am of
the view that a reasonable assessment can be made of an
individual's qualifications on the basis of past observation and
the appellant has provided no convincing argument to lead me
to conclude that Mr. McCrae could not have made some
intelligent assessment of Mr. Dunne's qualifications on the
basis of his knowledge of Mr. Dunne's work history.
It will be observed that what was raised on
behalf of the respondent was not whether he, Mr.
Bozoian, was qualified for the appointment. Nor
was it whether he was better qualified for it than
Mr. Dunne. What was raised was simply whether
Mr. Dunne was qualified for the appointment and
on this the Board upheld the assessment made by
Mr. McCrae. As I see it, there is nothing wrong in
law with that particular finding of the Appeal
Board and I do not recall any challenge to it
having been made on the hearing of the present
application.
The Appeal Board, however, went on to consider
whether or not it was in the best interests of the
Public Service to select Mr. Dunne for appoint
ment without competition and, having concluded
that there had been an appearance of want of
procedural fairness, went on to allow the appeal, as
already indicated, on the ground that the best
interests of the Public Service had not been served
by selecting Mr. Dunne for appointment without
competition.
On the hearing in this Court counsel for the
respondent did not seek to support the authority of
the Appeal Board to decide what process of selec
tion is in the best interests of the Public Service.
His submission, as I understood it, was that the
substance of what the Board had decided was that
the merit principle had not been observed in
making the selection.
In the way the reasons of the Appeal Board are
expressed there is something to be said for the
submission but after reading and re-reading the
reasons I am unable to conclude that that interpre
tation should be put on what the Board said.
What the Board, as I read the reasons, purport
ed to decide was that the earlier competition
should have been extended or a new competition
should have been held and that because it was not
held there was an appearance of procedural unfair
ness which was not in the best interests of the
Public Service. However, having made that finding
and having also found that Mr. Dunne was quali-
fied for the appointment, it appears to me that
what the Board has done is to leave unanswered
and undecided what I conceive to be the critical
question for the inquiry, that is to say, whether in
the circumstances disclosed the process of selection
of Mr. Dunne for appointment without competi
tion was carried out in a manner that took into
account the relative merits of the persons whose
opportunity for advancement would be prejudiced
by the appointment.
It must be remembered that Mr. Dunne had not
been a candidate in the competition that had been
held earlier. As he had not been asked the ques
tions that were required to be answered by those
who were candidates, no one knows what score he
might have made. There is thus nothing in the
record to show that he would have fared any better
than the candidates fared on that examination.
The results achieved by the candidates in it could
not, therefore, in my opinion, serve as a basis for
comparison of their qualifications with those of
Mr. Dunne in a selection for appointment subse
quently made without competition. Moreover, the
recital by the Board of the case put forward by the
Department at the inquiry, while setting out facts
from which it might be concluded that Mr. Dunne
had the necessary qualifications, contains no
suggestion that the qualifications of anyone but
Mr. Dunne were considered in the selection pro
cess or that his qualifications were compared with
those of any of the persons whose opportunities for
advancement would be prejudiced by his being
selected for appointment.
I would set aside the decision and refer the
matter back to the Commission for determination
by an appeal board after considering the question
whether the selection of Mr. Dunne for appoint
ment without competition was made according to
merit as required by section 10 of the Public
Service Employment Act.
JEROME A.C.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J. (dissenting in part): This is an
application pursuant to section 28 of the Federal
Court Act to review and set aside a decision of the
Public Service Appeal Board dated March 10,
1981. The decision, signed by the Board's Chair
man, allowed an appeal brought by the respondent
herein, Haig Bozoian, against the selection of Mr.
V. J. Dunne to fill a vacant position of Superin
tendent Traffic Operations with the Department of
National Revenue (Customs and Excise) at the
area port of Pacific Highway, British Columbia.
In September 1980 the Department initiated a
competition to fill the position. The qualifications
of five candidates, including Mr. Bozoian, were
assessed by a Rating Board on the basis of their
responses to a series of questions at an interview
held by the Board on December 2, 1980. The
Board decided that none of the candidates had
demonstrated the essential minimum "Knowledge"
requirement to efficiently perform the duties of the
position. That essential knowledge requirement is
set forth in the statement of qualifications for the
position, as follows:
ESSENTIAL REQUIREMENTS
Knowledge
—Knowledge of the Customs Act, Customs Tariff and parts
of the Excise Tax Act, and related regulations, directives
and procedures governing the movement of people, goods
and vehicles entering Canada;
—Knowledge of the relevant parts of Acts and regulations of
other Departments, administered by Customs on their
behalf;
—Knowledge of departmental practices and procedures in
respect to administrative and personnel matters.
One other person had filed an application in the
competition, but too late, and, therefore, he was
not interviewed. Mr. Dunne was not a candidate in
the competition. The candidates were advised by
letter dated December 10, 1980 that the competi
tion had not been fruitful in terms of identifying
someone for appointment to the vacant position. I
think that the decisions of the Rating Board
should be treated as valid.
The next development in the process of filling
the position is set forth in the following portion of
the Appeal Board's decision:
On December 15, 1980, V. Dunne who occupied a position of
Training and Development Advisor, classified at the PE 2 level,
requested a "lateral transfer" to the position of Superintendent
Traffic Operations. Mr. McCrae knew Mr. Dunne because he
had supervised him from 1974 to 1976 when Mr. Dunne
occupied a position similar to the position to be filled. Mr.
McCrae was also aware that since 1976 Mr. Dunne had been a
Training and Development Coordinator and had been active in
developing technical training programs for Customs Inspectors
and Superintendents. On the basis of his personal knowledge of
Mr. Dunne's qualifications, Mr. McCrae concluded that he
could carry out the duties of the position to be filled and
selected him for appointment. Mr. McCrae prepared the fol
lowing narrative comments on Mr. Dunne:
Knowledge—Mr. V. J. Dunne previously encumbered a posi
tion titled Superintendent Outside Services, at the PM 3 level
at Pacific Highway during the period 1973-1976.
Mr. Dunne was under my general supervision from Septem-
ber 1974 through December 1976. During this period Mr.
Dunne demonstrated he possessed a very good knowledge of
the Customs Act, Excise Act, Excise Tax Act, Customs
Tariff and related regulations, directives and procedures as
well as those of other government agencies administered on
their behalf by Customs and Excise.
Abilities—Mr. Dunne has satisfactorily demonstrated the
ability to identify and resolve problems and implement
remedial action, apply the provisions of the collective agree
ments, communicate effectively, direct and train staff.
Personal Suitability—Mr. Dunne enjoys the ability to estab
lish and maintain good interpersonal working relations with
representatives of Customs House, brokerage firms, transpor
tation companies and members of other enforcement
agencies.
He is tactful and exercises discretion and good judgement.
The position Superintendent Traffic Operations to which he
is being appointed is almost identical to the former position
of Superintendent Outside Services.
The Department posted a "notice of right to appeal" the
appointment and Mr. Bozoian lodged an appeal.
It appears from the Appeal Board's decision
that the Board had queried why Mr. Dunne did
not attend the Board's inquiry or enter the compe
tition, and also that it had given consideration to
the question "whether or not it was in the best
interests of the Public Service to select Mr. Dunne
for appointment without competition." The last
two paragraphs of the decision read as follows:
I pointed out my concerns to the Department at the inquiry
and invited the representative to comment on the suggestion
that it appeared unfair for Mr. Dunne to be considered for
appointment without competition. It was, in my view, difficult
to understand why Mr. Dunne did not compete for the position
if he was interested in it when the competition was advertised.
The Department's representative explained that he did not
know why Mr. Dunne did not participate in the competition nor
did he know why Mr. Dunne requested a "lateral transfer" only
after the results of the competition had been released. He
suggested that it would only be conjecture to search for Mr.
Dunne's motives. He could only clearly explain the actions
taken by the Department and on the basis of the information
before it he considered that the Department had acted in a
reasonable manner.
I agree that the best person to explain Mr. Dunne's motives
would be Mr. Dunne himself. Unfortunately, he chose not to
attend the appeal inquiry even though he was invited to do so.
Consequently, Mr. Dunne himself has provided no information
on why he did not participate in the competition even though he
was eligible to do so. As a result, the perception of a want of
procedural fairness in making the selection for appointment
remains with me and I am left with the impression that Mr.
Dunne hovered in the wings until he had nobody to compete
with for the position. As I noted in the case of Kelly (identified
earlier), in my view it is intended that selections for appoint
ment from within the Public Service normally be made by
competition. A competition was initiated in this case and I am
of the opinion that the competition should have been extended
before attempting to fill the vacant position by other means. If,
after the results of the competition were released, other poten
tial candidates identified themselves, then the competition
could easily have been continued so that the relative merit of
the second series of candidates could be easily compared with
that of the first group. Alternatively, the area of competition
could have been expanded. In other words, a thorough pursuit
for a successful candidate should be made by competition
before considering the merit of only one person for appointment
without competition. The appearance of a want of procedural
fairness in the circumstances of this case leads me to conclude
that the best interests of the Public Service have not been
served by selecting Mr. Dunne for appointment without compe
tition and I allow the appeal against his appointment.
I see no useful purpose in speculating as to why
Mr. Dunne did not enter the competition or attend
the Board's inquiry. The competition ran its course
without him; and a representative of the Depart
ment that appointed him to the vacant position
attended before the Board to speak in respect of
the Department's action, the procedure followed,
and the selection and appointment of Mr. Dunne.
In several recent cases this Court has considered
the "merit principle" and requirements and proce
dures for appointments to or from within the
Public Service, particularly sections 10 and 21 of
the Public Service Employment Act and section 5
of the Public Service Employment Regulations. I
will refer to two of the cases and repeat here
verbatim certain portions of the respective reasons
for judgment.
In Attorney General of Canada v. Appeal Board
established by the Public Service Commission
[supra], Heald J. said [at pages 803-804]:
We are all of the opinion that the respondent Board, having
found (Case, page 124):
... that the Department had sufficient evidence upon which
to conclude that Mrs. McArthur had the qualifications
required to perform the duties of the position under appeal
exceeded its jurisdiction in proceeding to substitute its opinion
for the opinion of the Department to which the Public Service
Commission had delegated the authority to determine whether
a competition would or would not be in the best interests of the
Public Service pursuant to subparagraph 5(c)(i) of the Public
Service Employment Regulations, C.R.C. 1978, Vol XIV, c.
1337, as amended.
The function of an Appeal Board appointed pursuant to
section 21 of the Public Service Employment Act, R.S.C. 1970,
c. P-32, is to determine, after inquiry, whether the selection
made in the instant case was a "selection according to merit"
pursuant to section 10 of that Act. The Appeal Board has a
right and duty to satisfy itself that the opinion required by
subsection 5(c)(i) of the Regulations, supra, was in fact formed
but it cannot review the reasonableness of the opinion so long as
there was some basis for it. The opinion formed would have to
be so unreasonable that no reasonable person could form that
opinion. The Appeal Board is not entitled to substitute its
opinion for that of the Department exercising the delegated
authority to form that opinion. The question whether there has
been the required opinion formed is relevant to the application
of the merit principle, but as to the reasonableness of such
opinion, an Appeal Board should be bound by the same limits
as a Court exercising judicial review or sitting on a statutory
appeal. In our view, on the facts of this case, there was ample
evidence upon which the Department could reach the conclu
sion which it did, namely, that it was necessary to transfer Mrs.
McArthur for humanitarian or compassionate reasons. On this
basis, the Appeal Board was not entitled to substitute its
opinion for that of the Department and thus, exceeded its
jurisdiction.
In Attorney General of Canada v. Greaves et al.
[supra] in which this Court dismissed an applica
tion to set aside a decision of the Appeal Board
that had allowed appeals against the appointment
of one Brian Dougall under paragraph 5(c) of the
Public Service Employment Regulations, Pratte J.
said [at pages 810-811]:
A selection which has been made in accordance with the
procedure laid down in the Act and the Regulations, be it by
competition or otherwise, may nevertheless be successfully
attacked under section 21 if the manner in which the selection
was made was such that it violated the merit principle. For
instance, a selection made by competition following all the
statutory requirements may be tainted by the fact the qualifica
tions of the candidates have been wrongfully assessed. This is
true when the selection is made by competition; it is also true if
the selection is made without a competition. The requirements
of the merit principle are, in my view, always the same. They
do not vary with the method of selection chosen. That principle
requires that the selection be made "according to merit", which
means, "that the best persons possible will be found for the
various positions in the Public Service ...". In the present case,
the Appeal Board, as I understand its decision, was not satisfied
that the appointment had been made "according to merit"
because the qualifications of the selected candidate had never
been in any way compared with those of other persons who, like
the respondents, might have wished to apply for the position.
This was, in my view, a valid reason for allowing the appeal.
And in that case Le Dain J. agreed that the section
28 application should be dismissed, and he said [at
pages 811-812]:
Sections 10 and 21 of the Public Service Employment Act
indicate that an appointment may be made in the Public
Service without competition. To that extent paragraph 5(c) of
the Public Service Employment Regulations, which provides
for appointment without competition, finds support in the
legislation. But the alternative process of personnel selection
chosen by the Commission must be one which, in the words of
section 10 of the Act, is "designed to establish the merit of
candidates." The merit established by competition is obviously
relative merit. I agree that we would not be justified in
concluding that the word "merit" in the part of section 10
which reads, "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," is
intended to have the different and more limited meaning of
simply being qualified for a position. I believe the merit princi
ple was intended to achieve more than merely the appointment
of qualified persons in the Public Service. Its purpose is to find
the best qualified persons from among those who are available.
In the case of a competition the persons who are available are
identified as candidates for the position. The Commission, or
those exercising its delegated authority, know for certain the
persons whose qualifications for the position must be compared
in the light of the merit principle in order to comply with the
requirement of section 10 of the Act. In the case of an
appointment without competition there is not an identification
of other candidates for the position. This is clear from a
comparison of paragraphs (a) and (b) with paragraph (c) of
section 5 of the Regulations. flow, then, is the Commission, or
those exercising its delegated authority, to know who the
candidate for appointment is to be compared with in order to
satisfy the requirement of section 10? In my opinion, it is an
implication of section 21 of the Act, which gives a right of
appeal, in the case of an appointment without competition, to
"every person whose opportunity for advancement, in the opin
ion of the Commission, has been prejudicially affected", that
the candidate's qualifications must be compared with those of
the persons whose opportunities for advancement would be
prejudicially affected by his or her appointment. Such persons
are usually identified after a selection is made, as happened in
the present case after the first selection which led to the first
decision of the Appeal Board, but they may, as a practical
matter, be identified before a selection is made, and should
there be any oversight in this respect it may be subsequently
corrected. I am mindful that the conclusion reached in this case
may severely limit the flexibility provided by the power of
transfer in the Public Service, to the extent that a particular
transfer constitutes an appointment within the meaning of the
Act, but if more is required in this regard it should be clearly
provided by the legislation.
It is clear that when Mr. Dunne made his
application to be transferred to the vacant position
the process of selection by advertised competition
had been tried, extending in all over a period of
several months, and that the competition had not
disclosed any person qualified for the position.
Thereupon, on consideration of the fact of the
competition and its result, and Mr. Dunne's
application and his qualifications, the Department
exercised its authority under paragraph 5(c) of the
Public Service Employment Regulations and
selected him to fill the position. The situation in
the so-called "Greaves case", above mentioned,
was different for in that case, as I recall it, the
appointment of Brian Dougall was made without
any competition having been called or held and the
Department was aware before it made the appoint
ment that certain employees were opposed to the
appointment on the ground that their opportunity
for advancement would thereby be prejudicially
affected; and the Department, notwithstanding
that awareness, did not compare his qualifications
with whatever qualifications those other employees
had for the position.
In my view, in the circumstances of this case
there was ample evidence upon which the Depart
ment could reach its conclusion to act under sub-
paragraph 5(c)(i) of the Public Service Employ
ment Regulations and appoint Mr. Dunne to the
vacant position, and the Appeal Board was not
entitled to substitute therefor its opinion that the
competition process should be continued or extend
ed to seek a second series of candidates. In doing
so it exceeded its jurisdiction and erred in law.
In the record before this Court on this applica
tion I do not see anything that should give me
cause to doubt that in proceeding as it did and
appointing Mr. Dunne the Department acted rea
sonably and in good faith and that the appoint
ment was made "according to merit".
Therefore, my conclusion is that this section 28
application should be granted and that the decision
of the Appeal Board should be set aside.
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.