[1] Mr. Hensley Oriji seeks judicial review of a decision of an investigator of the Public Service Commission ("PSC"), dated July 17, 2003, made pursuant to section 7.1 of the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA"). In that decision, the investigator dismissed the applicant's complaint that the Department of Public Works and Government Services Canada ("Public Works" ) made and then improperly rescinded an offer of employment to the applicant. The applicant seeks an order setting aside the decision and an order of mandamus that the PSC and Public Works respect the merit principle and uphold the job offer made to the applicant. The applicant also requests, in the alternative, a direction that this judicial review proceed as an action, by "combining" it with his action, T-49-03, filed January 13, 2003, now pending before the Federal Court.
BACKGROUND
[2] The challenged decision on this judicial review is a redetermination of the applicant's complaint made by order of Mr. Justice Gibson of this Court dated November 7, 2002. In that decision, Gibson J. held that the investigator of the PSC had erroneously interpreted section 22 of the PSEA and violated the duty of fairness in determining Mr. Oriji's complaint. That decision is reported at: Oriji v. Canada (Attorney General), [2003] 2 F.C. 423 (T.D.).
[3] Mr. Oriji's complaint relates to an open competition conducted for a CR-04 Systems and Accounting Clerk position with the Systems and Accounting section of Public Works. The applicant and several others wrote an examination on February 6, 2001, that was to test abilities required by the statement of qualifications for the position. Prior to writing the examination, the applicant and the other candidates were advised that the individual who received the highest mark would be contacted and then required to pass a language test and security clearances prior to being appointed to the CR-04 position. The applicant maintains that the official who conducted the examination stated that the position was determinate, for one year, and would be renewable for another year and after two years the position would be transferred to the Royal Canadian Mounted Police.
[4] Later on the same day of the examination, February 6, 2001, an official with Public Works, Ms. Diotte, telephoned the applicant and told him that he had received the highest mark on the examination and was in fact the only person who wrote the examination who had been successful. One of the contentious issues in the applicant's complaint relates to whether he was at this point offered the CR-04 position.
[5] The applicant maintains that he understood the information communicated to him in this telephone conversation as being an offer of employment which he accepted in the course of the conversation. The applicant was told that the latest starting date for the job would be April 2, 2001, the date dependant on the successful completion of the language tests, security clearance and reference checks. No written confirmation of this offer was ever made.
[6] By March 2001 a date had not yet been arranged for the applicant to take the language tests. On March 8, 2001, Ms. Diotte emailed a staffing officer, Ms. Desjardins, requesting that arrangements be made for the applicant to take the language test. Around this time, the Human Resources branch of Public Works was made aware of a number of employees who were to be declared surplus to requirements. These employees, when formally notified of their status under the government workforce adjustment policy, would then become "priorities" for placement in available positions. Included were several clerks at the CR-03 level who had related work experience although at a lower level. Ms. Desjardins advised Ms. Diotte that they should be considered for the CR-04 position. The next day, via email, Ms. Desjardins contacted one of these employees, Ms. Dumouchel, believing that she might be a suitable candidate for the
CR-04 position and advised her to contact Ms. Diotte about the job. The request for the applicant's language testing was put on hold at this point.
[7] On March 26, 2001, a Public Service Commission official telephoned the applicant and informed him that the CR-04 position was no longer available due to a priority staffing action, that is, the position was to be staffed by a Public Works employee who had been declared surplus. According to the applicant, the official told him that Public Works was rescinding the offer of employment that had been made on February 6, 2001.
[8] While her substantive position was classified at the CR-03 level, Ms. Dumouchel had gained experience working in acting positions in other classifications and levels, including as a CR-04. Ms. Diotte had supervised her and was satisfied that she had the ability to do the required work. Accordingly, Ms. Dumouchel was appointed to the CR-04 position on an acting basis and began working April 2, 2001. This appointment was to last until December 31, 2002. However, in June 2001, Ms. Dumouchel left the CR-04 position for an indeterminate position elsewhere in the federal government. Therefore, the CR-04 position was again vacant and at that point, Public Works decided that if the applicant completed the language tests at the required level, he would be offered the CR-04 position.
[9] On April 10, 2001 the applicant launched a complaint, arguing that Public Works had improperly rescinded its verbal offer of employment for the particular position for which he had competed. An investigation was initiated pursuant to section 7.1 of the PSEA. The investigator determined on November 23, 2001 that the applicant's complaint was unfounded. The investigator concluded that there had been no offer of employment made to Mr. Oriji in the proper form and by a person with the proper delegated authority.
[10] Sometime after launching his complaint, the applicant was offered a 6-month term contract, provided he passed the language tests and dropped his complaint. The applicant did not want to drop his complaint, as he felt that he was entitled to the one year, renewable position for which he had competed and been successful.
[11] In June 2001, Public Works agreed to the applicant continuing his complaint, and provided that he could pass the language tests, he would be offered the 6-month term position. Public Works scheduled the language testing on two occasions, however, the applicant did not attend either of these. On August 3, 2001, the applicant informed Public Works that he was no longer interested in the position. The applicant maintains that his reasons for this were that he would not have begun working until mid-September, 2001 and that the actual duration of the position would have been for less then three months, and he felt he deserved the longer term which had been mentioned at the time he wrote the examination. Moreover, he states that he was being asked to take the language tests in the expectation that he would fail and that this was being used by Public Works to prevent him from pursuing his complaint.
[12] As mentioned above, the applicant successfully challenged the investigator's November 23, 2001 decision on judicial review. The Court found that the investigator had erroneously interpreted section 22 of the PSEA and breached the principles of procedural fairness in not giving the applicant a reasonable opportunity to review and respond to evidence from Public Works presented to the investigator. This judicial review resulted in the applicant's complaint being remitted for reconsideration.
[13] The applicant attests in his affidavit filed in this proceeding that the PSC was uncooperative and delayed in initiating the redetermination of his complaint and that it was not until after he filed his statement of claim with this court on January 13, 2003, in an action against Public Works for damages due to alleged tortuous and contractual breaches, Docket No. T-49-03, that the PSC initiated the redetermination.
The Decision under Review
[14] Upon reconsideration of the matter, a different investigator of the PSC conducted several sessions of fact-finding, on January 28, February 5, March 6 and March 19th, 2003. The applicant represented himself and Public Works was represented by counsel. Four individuals from Public Works also testified about what transpired with the staffing of the CR-04 position.
[15] According to the reasons of the investigator, the applicant questioned whether the transferred, "surplus" individual who received the CR-04 position was entitled to a priority appointment pursuant to the PSEA and PSC policy.
[16] The investigator concluded that Mr. Oriji's complaint was unfounded and made the following findings in support of this conclusion:
- the applicant was never given an offer of employment because the selection process for the CR-04 position had not been completed, as there remained certain steps in the process to be completed, such as the language testing and the security clearance. Therefore, no eligibility list for the CR-04 position had ever been formed. Furthermore, Ms. Diotte did not have the delegated authority to make offers of employment and she had never done so in the past, hence the investigator found that she could not have made an offer to the applicant on February 6, 2001;
- Ms. Dumouchel was not entitled to a priority appointment because at the time of her appointment to the CR-04 position she did not meet the definition of a "surplus employee" since she had not received written notice of her surplus status and the appointment to the CR-04 position was a promotion from her previous position;
- Despite the fact that a priority appointment did not occur, Ms. Dumouchel's appointment complied with the PSEA and the Public Service Employment Regulations, 2000 SOR/2000-80 (the "Regulations"), as she had been appointed in accordance with the merit principle set out in s. 10(1) of the PSEA as an acting appointment. Ms. Diotte knew of Ms. Dumouchel's capabilities and work experience, having worked with her in the past. Keeping in mind section 11 of the PSEA, it was not unreasonable for Public Works to determine that she was the most qualified candidate for the CR-04 position. The fact that Ms. Dumouchel was not entitled to a priority appointment had no impact on the applicant's situation as the selection process for the CR-04 position was never completed and an eligibility list had never been formed.
ISSUES
[17] 1. What is the appropriate standard of review in this case?
2. Did the investigator err in law or make perverse findings of fact, not supported by the material in front of her?
ANALYSIS
Standard of Review
[18] The applicant raised a number of issues in this judicial review, relating in large part to the investigator's three findings above. The applicant represented himself in this proceeding and did not put forward a position in regards to the standard of review. The respondent submits that the appropriate standard is patent unreasonableness for the investigator's findings of fact, as this court has acknowledged the expertise of the PSC's officers in reviewing the facts in employment complaints: Adams v. Canada (Attorney General), [2002] F.C.J. No. 98 (T.D.)(QL). The respondent also argues that the standard of review in relation to an investigator's determination on a question of law is correctness.
[19] I find that the standard of review in relation to the issues of whether the investigator erred in making her three findings; that is, that there had been no offer of employment, that a priority appointment had not been made and that Ms. Dumouchel was nonetheless appropriately appointed on an acting basis and therefore, any error in characterization of her appointment did not have an impact on the applicant's situation, to be subject to an overall standard of reasonableness simpliciter. I note, though, that where particular questions of law can be extricated from the investigator's factual findings, having regard to the nature of the question and the expertise of this Court in analysing the law relative to the investigator, I will apply the standard of correctness.
[20] The pragmatic and functional approach directs that four factors must be considered by the Court in determining the appropriate standard of review for a particular administrative decision: (1) the purpose(s) of the legislation as a whole and the provisions at issue in particular, (2) the nature of the question; being law, fact or mixed fact and law, (3) the expertise of the tribunal relative to that of the reviewing court in regards to the question at issue, and (4) the existence of any privative clause or statutory right of appeal. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. As stated by the Supreme Court of Canada in Pushpanathan, supra, at paragraph 26, the central inquiry in the standard of review analysis is determining the degree to which Parliament intended the administrative decision under review to be subject to judicial scrutiny.
[21] First, the "dominant objective" of the PSEA is to ensure that selection and appointment to the Public Service of Canada takes place according to merit: see Bambrough v. Public Service Commission Appeal Board, [1976] 2 F.C. 109 (C.A.) at 115 and Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (C.A.)(QL). The purpose of an investigation conducted pursuant to s. 7.1 of the PSEA is to provide a recommendation to the PSC so that the PSC may take any corrective action that it considers appropriate (see section 7.5 of the PSEA). The power to provide such recommendation is discretionary, rather than mandatory.
[22] Renée Caron in Employment in the Federal Public Service (Aurora, Ont.: Canada Law Book Inc., 2003) at 6-70 describes section 7.1 as a "general residual power" by which the Commission may conduct investigations in areas for which an appeal mechanism is not already provided in the PSEA, including such important matters as appointments in open competitions and disputes over priorities for appointment. This factor indicates a medium level of deference, given that the investigator has the important function of determining whether the candidacy of an applicant in an open competition has been dealt with in accordance with the principle of merit and other legislative requirements of the PSEA, however, the investigator has only an advisory power to make recommendations to the PSC.
[23] Second, the questions at issue in this judicial review are whether the applicant was indeed offered the employment position, whether the other "priority appointment" was made in error and whether such erroneous appointment had an impact on the applicant's situation. In my opinion, therefore, the nature of the problem is one involving questions of mixed fact and law, necessitating evaluation of the PSEA and the Regulations and applying such law to the factual circumstances of the case. This indicates as well that a medium level of deference should be maintained.
[24] Third, the investigator is to be viewed as having a good deal of expertise in coming to factual determinations on employment-related matters and substantial deference is warranted on factual findings: Adams, supra. The questions at issue in the present case are ones of mixed fact and law and, in part, engage the expertise of this particular administrative decision-maker. The Court is better suited, however, in analysing the law, given that there is no requirement in the PSEA that investigators have any legal training.
[25] Finally, the PSEA contains neither a privative clause, nor a right of appeal. In my opinion, this factor does not militate in favour of a particular level of deference of a reviewing court.
Finding of no offer of employment reasonable
[26] The applicant argues that the investigator erred in finding that there was no offer of employment because such finding was res judicata as a result of Justice Gibson's decision of November 7, 2002.
[27] In my opinion, this argument has no merit. The first investigator's finding that there was no offer of employment based upon her interpretation of section 22 of the PSEA was found by this Court to be an error in law. Such judicial finding did not subsequently preclude the new investigator, upon rehearing of the matter, to determine that no offer of employment was made to the applicant based on different reasoning. As long as the investigator did not rely on the earlier erroneous interpretation of section 22, which was corrected by the Court, then it was open to the new investigator to make new findings, relying on a separate and distinct analysis.
[28] The applicant also submits that if the investigator did not exceed her jurisdiction in "revisiting" this issue, then such finding was not supported by the evidence in front of her. The applicant argues that it is simply perverse for the investigator to have accepted the "flip-flopping" views of Public Works, in that it first admitted that it made a verbal offer which was invalid because it was not written and signed, however, on the redetermination of the matter, it changed its position, arguing that no offer had ever been made.
[29] The respondent argues that, based on the evidence before her, the finding that no offer of employment had been made to the applicant was a reasonable one. The investigator's reasons for so concluding were reasonably based on the evidence which indicated that the applicant had not completed all the stages of the competition process and that Public Works would not be able to offer him the position until he had satisfactorily completed the language testing. The respondent says that the investigator was in the best position to assess the credibility and demeanour of witnesses, and she was entitled to prefer the testimony of Ms. Diotte with respect to the February 6, 2001 telephone conversation.
[30] In my opinion, the investigator's finding that no offer of employment was made to the applicant was based on a correct interpretation of the PSEA and the Regulations, and such interpretation was reasonably applied to the factual circumstances of this case. The investigator concluded that since no eligibility list had been formed and since the applicant had failed to meet one of the requirements for the position, the successful completion of the second language tests, there was no way that he could have been "offered" the CR-04 position in accordance with the PSEA and the Regulations. The investigator also found that Ms. Diotte did not have the requisite authority to make such offer and preferred her evidence of what was said during the conversation, namely that she made it clear to the applicant that appointment to the position was contingent upon the language testing and security and reference checks.
[31] The relevant provisions of the PSEA are the definition of "open competition" in section 2(1) and sections 16(1), 17(1), (1.1) and (4), 18(1) and 20. These provisions set out the process that must be followed in establishing an eligibility list for an open competition:
| "open competition" means a competition that is open to persons who are employed in the Public Service as well as to persons who are not employed in the Public Service;
...
16. (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.
...
17. (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligibility lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.
(1.1) A candidate may be placed on an eligibility list while it is being determined if the candidate meets the security, reliability and medical conditions of employment established by the Treasury Board.
...
(4) When establishing an eligibility list in the case of an open competition, the Commission shall, after complying with section 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(4)(a) and who are qualified shall be placed, in order of merit, ahead of other successful candidates;(b) persons who come with paragraph 16(4)(b) and who are qualified shall be placed, in order of merit, on the list immediately following any candidates mentioned in paragraph (a) of this subsection;
(c) persons who come within paragraph 16(4)(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(4)(a), (b) or (c) and who are qualified shall be placed, in order of merit, after any candidates who come within those paragraphs.
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18. (1) An appointment under this Act made to a position by competition shall be made from an eligibility list in accordance with the regulations of the Commission.
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20. Employees appointed to serve in any department or other portion of the Public Service, or part thereof, shall be qualified in the knowledge and use of the English or French language or both, to the extent that the Commission deems necessary in order that the functions of the department, portion or part can be performed adequately and effective service can be provided to the public.
[Emphasis mine]
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« concours public » Concours ouvert tant aux personnes faisant partie de la fonction publique qu'aux autres;
...
16. (1) La Commission étudie toutes les candidatures qui lui parviennent dans le délai fixé à cet égard. Après avoir pris connaissance des autres documents qu'elle juge utiles à leur égard, et après avoir tenu les examens, épreuves, entrevues et enquêtes qu'elle estime souhaitables, elle sélectionne les candidats qualifiés pour le ou les postes faisant l'objet du concours.
...
17. (1) Parmi les candidats qualifiés à un concours, la Commission sélectionne ceux qui occupent les premiers rangs et les inscrit sur une ou plusieurs listes, dites listes d'admissibilité, selon le nombre de vacances auxquelles elle envisage de pourvoir dans l'immédiat ou plus tard.
(1.1) Un candidat peut être inscrit sur une liste d'admissibilité pendant la vérification de la conformité de son cas aux conditions d'emploi établies par le Conseil du Trésor en matière de sécurité, de fiabilité ou médicale.
...
(4) Dans le cas d'un concours public, la Commission, après avoir mis en oeuvre l'article 16 et effectué toute autre recherche qu'elle juge nécessaire, établit la liste d'admissibilité en se fondant sur les principes suivants :
a) à l'intérieur de chacune des catégories définies au paragraphe 16(4), les candidats qualifiés sont classés selon leur mérite;
b) sont placés en tête de liste les candidats qualifiés visés par l'alinéa 16(4)a), immédiatement suivis de ceux qui sont visés par l'alinéa 16(4)b), eux-mêmes précédant les candidats qualifiés visés par l'alinéa 16(4)c);
c) les candidats qualifiés n'entrant dans aucune des catégories définies au paragraphe 16(4) sont placés par ordre de mérite, après tout candidat relevant de l'une de ces catégories.
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18. (1) Les nominations à des postes pourvus par voie de concours sont effectuées d'après la liste d'admissibilité conformément aux règlements de la Commission.
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20. Les fonctionnaires affectés à un ministère ou à un autre secteur de la fonction publique, ou à une partie seulement de l'un de ceux-ci, doivent posséder, en ce qui concerne la connaissance et l'usage soit du français, soit de l'anglais, soit des deux langues, les qualifications que la Commission estime nécessaires pour que leur organisme d'affectation puisse remplir son office et fournir au public un service efficace.
[Je souligne]
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[32] Section 15(1) of the Regulations is also relevant and provides:
| 15. (1) If an eligibility list has been established for a position, an appointment to the position must be made according to the list, unless it has been exhausted or has expired, before an appointment shall be made as a result of any other process of personnel selection.
[Emphasis mine]
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15. (1) Si une liste d'admissibilité a été établie pour un poste, toute nomination à ce poste doit être faite d'après cette liste à moins que celle-ci soit épuisée ou expirée, avant qu'une nomination soit faite selon un autre mode de sélection.
[Je souligne]
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[33] Pursuant to this legislative scheme, once the applicant had demonstrated that he met all the requirements for the position, he would have been entitled to be placed on an eligibility list, ranked accordance to merit: see also [1983] 1 S.C.R. 582">Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582 at 597. In my opinion, an eligibility list had not been established because the applicant was not yet considered "qualified" due to the fact that he had not completed the second language testing, a requirement deemed necessary by the Commission to demonstrate language proficiency pursuant to section 20.
[34] Furthermore, pursuant to s. 17(1.1) of the PSEA, a candidate may be placed on an eligibility list pending the verification of the security, reliability and medical requirements of a position, however, this provision does not mention that a candidate may be placed on an eligibility list pending the outcome of their language testing. The omission of reference to second language requirements in s. 17(1.1) indicates, in my view, that demonstrating language proficiency for a position is regarded as integral to the position itself and affects whether an applicant is in fact "qualified" for the position.
[35] The work description for the determinate CR-04 position stated clearly that the language requirements for the position were "bilingual BBB/ BBB". While Mr. Oriji was the only person who satisfactorily passed the written examination, he had not passed the second language tests to demonstrate his qualification for "BBB". In this situation, I am satisfied that there was no requirement for Public Works to establish an eligibility list, which is the means of appointing a person through an open competition.
[36] Mr. Oriji has also taken issue with the fact that the statement of qualifications for the CR-04 position at one point allegedly stated "bilingual", however, at a later point in the process this was changed to "bilingual imperative". In my opinion, nothing turns on this issue as the CR-04 position was never contemplated as being an "indeterminate" position, but rather was for a determinate term; although the applicant claims that it was originally represented to him as a one year position that could be renewed for another year, whereas Public Works maintains that the position was for a different term. Regardless of which term is accepted, Ms. Dumouchel was not appointed for an indeterminate term. She was appointed for a fixed, determinate one. Pursuant to the Public Service Official Languages Exclusion Approval Order, SOR/81-787, a "non-imperative" bilingual appointment may only be made for appointments for an indeterminate period. The CR-04 position at issue in this case was never represented as an indeterminate position and therefore its requirement of "bilingual BBB/BBB" meant that the language requirements were designated on an imperative basis. See also: Caron, supra, at 2-82 - 2-83.
[37] One area that I find questionable is the delay of Public Works in arranging the applicant's second language testing, between the time of his examination on February 6, 2001, and the events of March 2001. The question of placing someone in an acting appointment did not arise until after March 8, 2001, when Ms. Diotte became aware that individuals who occupied CR-03 positions within the Department could be considered for staffing the CR-04 position. This put the scheduling of the applicant's language testing on hold, and resulted in him never completing this requirement for the position prior to the discovery of a suitable candidate in the person of Ms. Dumouchel. While the applicant can be faulted for failing to later attend at the language testing in July and August 2001, with regards to this earlier time period between February 6 and March 26, 2001, he was left in limbo waiting for Public Works to schedule his language tests and with the belief he would be starting a new job on April 2, 2001. Ms. Diotte was apparently reluctant to call him herself to explain the situation and asked a PSC official to convey the bad news. It is easy to understand why Mr. Oriji believes he was not treated fairly.
[38] Unfortunately, however, these circumstances do not give rise to a remedy for the applicant, as I have been referred to no authority or portion of the PSEA or Regulations which indicates that Public Works was under a duty to schedule the applicant for testing in a timely manner. The provisions of the PSEA dealing with consideration of applications for competitions grant a degree of flexibility to the PSC, as set out in section 16(1) of the PSEA, in considering further material and conducting such tests and investigations as it considers necessary or desirable. There is no reference to any prescribed time period within which a selection process must be completed and therefore, Public Works was within its legislated mandate in delaying the applicant's language tests in February-March 2001.
[39] The officials at Public Works' appear to have misunderstood, at the beginning at least, their duties and obligations under the Work Force Adjustment appendix, a binding part of Public Service employees' collective agreement. Section 1.1.1 of this appendix provided that when employees such as Ms. Dumouchel are affected by workforce adjustments then all departments must ensure "whenever possible" that such employees are "given every reasonable opportunity" to continue their careers with the Public Service. This responsibility, combined with the express authority set out in section 11 of the PSEA, that appointments shall be made from within the Public Service except where it is not in the best interest of the Public Service, supports Public Work's halting of the selection process, prior to an eligibility list having been established, and proceeding by way of an acting appointment for Ms. Dumouchel. As I will set out below, I can find no error in law in Public Works' appointment of Ms. Dumouchel on an acting basis.
[40] As a further reason why the applicant could not have received an offer of employment from Ms. Diotte in the conversation of February 6, 2001, the investigator accepted Public Works' evidence, and the testimony of Ms. Diotte herself, that she lacked the delegated authority to make such offer. In my view, such a finding is reasonable and supported by the evidence found on the record. The investigator, in fulfilling her function as the preliminary fact-finder, was entitled to find Ms. Diotte a "credible and forthright" witness. The investigator's conclusion on this point was reasonable, as it is clear from the record that Ms. Diotte did not have the authority pursuant to the PSEA to make an offer of employment to the applicant. The investigator was entitled to believe Ms. Diotte's testimony that she did not make an offer to the applicant, but stressed that he still had to meet certain requirements for the position. Even if one accepts that a reasonable interpretation of Ms. Diotte's comments in the telephone conversation of February 6, 2001 is that she made an offer of employment to the applicant, promises of employment made in excess of delegated authority under the PSEA do not contractually bind the PSC: see Panagopoulos v. Canada, [1990] F.C.J. No. 234 (T.D.)(QL).
[41] Therefore, the investigator's conclusion that the applicant was not offered employment is reasonable. It is supported by the fact that there was no requirement in the PSEA or Regulations to establish an eligibility list where the applicant had not yet been determined qualified for the position, and also by the finding that Ms. Diotte did not offer the applicant the position in the telephone conversation of February 6, 2001 because she did not have the authority to do so and her testimony as to this conversation was preferred by the investigator.
Investigator's finding of no priority appointment correct
[42] The applicant argues that the investigator's finding on this issue was at odds with what Public Works had previously argued. The applicant appears to argue that Ms. Dumouchel was correctly found not to be entitled to a priority appointment, however, the investigator erred in finding that her appointment was not, in fact, made on a priority basis but made pursuant to s. 10(1) of the PSEA.
[43] The respondent submits that the investigator's finding in this regard was reasonable, as Public Works had conceded that at the time of her appointment to the CR-04 position, Ms. Dumouchel did not meet the definition of a "surplus employee" because she only received the written notice of her layoff approximately one month after she had begun working in the CR-04 position and her appointment to the CR-04 position did, in fact, constitute a promotion. The respondent submits that contrary to the applicant's view, the investigator did not invent excuses for Public Works but instead reasonably concluded that Ms. Dumouchel was given an acting appointment pursuant to s. 10(1) of the PSEA.
[44] In my view, the investigator was correct in her interpretation of the law in this area. It is correct that Ms. Dumouchel did not meet the definition of "surplus employee" or the requirements for a priority appointment set out in the Regulations, and accompanying PSC policy. She had not received notice in writing of her surplus status until April 26, 2001, after she had begun working in the CR-04 position, and since the appointment to the CR-04 position constituted a promotion, she was not entitled to be appointed as a priority due to sections 35 and 40 of the Regulations.
Investigator's finding that characterization of the appointment as "priority" had no impact on the applicant was reasonable
[45] The applicant argues that the investigator erred in concluding that the fact that Ms. Dumouchel was not entitled to a priority appointment had no impact on his situation. According to the applicant, the investigator improperly concluded that Ms. Dumouchel was appointed to the position, in an acting capacity, pursuant to s. 10(1) of the PSEA. The applicant submits that the offer of employment made by Public Works in June, 2001, subject to his passing the language testing, was done in order to mask the fraudulent appointment of Ms. Dumouchel, and this offer was not genuine because it was only for a 6-month term rather than the length of time mentioned on the date of his examination on February 6, 2001.
[46] The respondent argues that the investigator made a reasonable determination with respect to the fact that Ms. Dumouchel was not appointed as a priority employee and this had no impact on the applicant's situation. The investigator's conclusion that Public Works was entitled to fill positions by way of acting appointments, provided it complied with the PSEA and the Regulations, was a reasonable one.
[47] I am satisfied from the evidence on the record that Ms. Dumouchel was appointed in an acting capacity. The next question therefore becomes, was she appointed in accordance with the PSEA and Regulations? Section 10 of the PSEA sets out the "merit principle". The investigator referred to this section as well as section 11 of the PSEA in determining that the acting appointment of Ms. Dumouchel was made in accordance with the PSEA and the Regulations. These provisions state:
| 10. (1) 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.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
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.
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10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
11. Les postes sont pourvus par nomination interne sauf si la Commission en juge autrement dans l'intérêt de la fonction publique.
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[48] In my opinion, the investigator's conclusion that Ms. Dumouchel's appointment in an acting capacity had no impact on the applicant's situation was reasonably open to her on the evidence notwithstanding that Ms. Dumouchel was erroneously determined, at one point in the selection process, to be a "priority employee" .
[49] The evidence on the record supports the investigator's finding that Ms. Dumouchel received an "acting appointment" to the CR-04 position, and that this appointment was made in compliance with the PSEA and the Regulations. "Acting appointment" is defined in the Regulations as follows:
| "acting appointment" means when an employee temporarily performs the duties of another position, if the performance of those duties would have constituted a promotion had the employee been appointed to the position. (nomination intérimaire);
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« nomination intérimaire » Le fait pour un fonctionnaire d'exercer temporairement les fonctions d'un autre poste, dans le cas où l'exercice de ces fonctions aurait constitué une promotion, si ce fonctionnaire avait été nommé à ce poste. (acting appointment)
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[50] Since Ms. Dumouchel was initially appointed for a period of more than four months she was not excluded from section 10 of the PSEA: see subsections 7(1) and (2) of the Regulations. The prescribed circumstances referred to in section 10(2) are set out in sections 5(2) and 42 of the Regulations and are not applicable to the present case. Ms. Diotte testified that she had worked with and overseen the work of Ms. Dumouchel for quite some time and knew that she was fully qualified for the requirements of the CR-04 position. On this basis, Public Works determined that it was not necessary to ask Ms. Dumouchel to undergo the examination, as her merit could be assessed without such test.
[51] In my opinion, the investigator's conclusion that the merit principle was respected in this case, having regard to both section 10(1) and the obligation set out in section 11 of the PSEA that appointments shall be made from within the Public Service, was correct. I note that in reviewing the investigator's application of the merit principle, I have applied the standard of correctness as per the established jurisprudence: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (C.A.)(QL). In turn, in relation to the facts of the case, the investigator's conclusion- that any mis-characterization of Ms. Dumouchel's appointment as "priority" did not have an impact on the applicant's situation since Ms. Dumouchel had validly received an "acting appointment"- was reasonable and is not subject to review by this Court.
Other issues
[52] The investigator determined that the Federal Court of Appeal decision, Attorney General of Canada v. Sharpe et al., [1983] 1 F.C. 292 (C.A.) was distinguished from Mr. Oriji's situation because in his case no eligibility list had been created. The respondent submits that this was a correct interpretation of the Sharpe, supra, decision and the investigator did not err in law in this regard.
[53] The applicant argues that the investigator erred in finding that Sharpe, supra, did not apply to open competitions because in his view, it applies to all competitions held under the PSEA and the Regulations and is directed at the unfair hiring practice which occurred in his case.
[54] On this issue, I am of the view that the investigator was correct in her interpretation of the Sharpe, supra, decision. The Federal Court of Appeal in Sharpe, supra, addressed the situation where an eligibility list had been established and candidates ranked in order of merit, after a competition for a position. Subsequently filling this position with an individual who had not participated in the competition was not in accordance with the PSEA, and in particular, the section 10 merit principle. Such a situation is distinct from the present one, in that here, an eligibility list was never established, as the applicant had not demonstrated that he was fully qualified for the position, by failing to successfully complete the language testing.
[55] The applicant makes a number of other allegations against Public Works, concerning concealing and tampering with evidence, abuse and misuse of authority, and perjury in the investigation. The applicant takes issue with the investigator's failure to subpoena the attendance at the fact-finding meetings of other candidates who wrote the examination with him in February 2001, who could confirm what was said at the examination about the duration of the term of the CR-04 position. The applicant also claims that Public Works' failure to disclose the identity of these other individuals who wrote the examination with him on February 6, 2001, through blacking out portions of documents he received, was not done in order to respect privacy legislation as maintained by Public Works, but rather to conceal the fact that Ms. Dumouchel was one of the candidates who wrote and failed the examination.
[56] While the applicant's frustration is to a degree warranted, given the finding by Justice Gibson that Public Works had improperly withheld evidence from him during the first investigation, in my view, upon the rehearing of this matter, it appears that the applicant has had full access to all the materials relevant to his complaint. Upon careful review of the record before me, his allegations of fraud, tampering with evidence, abuse of authority and perjury are not at all substantiated. Nor can I find any substantiation for his claim that Public Works has intentionally mislead him or concealed facts in relation to Ms. Dumouchel's appointment.
[57] The applicant has requested alternative relief that a direction be issued "combining" this judicial review with his outstanding action filed in this Court on January 13, 2003. In my opinion, section 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, is not applicable here, as the applicant's action, T-49-03, is already pending before this Court.
[58] Finally, in regards to costs, I am of the view having regard to my discretionary authority and the factors set out in Rule 400 of the Federal Court Rules, SOR/98-106, that although the applicant is not successful in this application, the conduct of Public Works, while not outside the law, nonetheless was poorly managed, in that it failed to recognize that certain employees would qualify for acting appointments until mid-way through the selection process in which the applicant was involved. With this in mind, I decline to award costs in favour of the respondent.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. Parties to bear their own costs.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1432-03
STYLE OF CAUSE: HENSLEY ORIJI
AND
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 26, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: May 6, 2004
APPEARANCES:
Hensley Oriji FOR THE APPLICANT
Tatiana Sandler FOR THE RESPONDENT
SOLICITORS OF RECORD:
HENSLEY ORIJI FOR THE APPLICANT
(Self-represented)
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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