Date: 20000117
Docket: T-1760-98
BETWEEN:
S.M. KHALIL HASAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
(Revenue Canada) and BRUCE ALLEN
Respondents
REASONS FOR ORDER
SHARLOW J.
[1] Mr. S.M. Khalil Hasan wishes to challenge the appointment of Mr. Bruce Allen to the position of Chief of Appeals of the Southern Ontario Regional office of Revenue Canada. He lodged an appeal under section 21 of the Public Service Employment Act. At a hearing before the Appeal Board of the Public Service Commission, the only issue permitted to be addressed was whether the Board had jurisdiction to hear the appeal. The Appeal Board Chairperson concluded that he had no jurisdiction and dismissed the appeal. Mr. Hasan seeks judicial review of that decision. As this is a question of law that goes to jurisdication, the standard of review is correctness.
[2] I summarize the undisputed facts as follows. In 1996, Revenue Canada wished to fill several positions at the EX-01 level in the Southern Ontario Region, including the positions of Chief of Appeals and Director, Programs. It was decided that closed competitions would be held for both positions.
[3] Mr. Hasan and 19 other persons applied for the Chief of Appeals position. None of the candidates were found to be qualified. No appointment was made on the basis of that competition. Therefore, no appeal rights arose as a result of that competition: Shannon v. Canada (Attorney General), [1993] 1 F.C. 331 (F.C.A.).
[4] The competition poster for Director, Programs indicated that "an eligibility list may be established to staff similar positions within the Southern Region". Mr. Hasan did not apply for the Director, Programs position. A number of other persons did apply, including Mr. Allen. The eight candidates who were found qualified, were placed on an eligibility list. Mr. Allen was one of those on the list.
[5] The Public Service Commission decided that the position of Chief of Appeals was similar to the position of Director, Programs, and that the former position could be filled from the eligibility list for the latter position. Mr. Allen was the highest ranked person on the list who had not yet been appointed to a position.
[6] On November 19, 1997, Mr. Allen was appointed to the position of Chief of Appeals. Some months prior, he had been appointed to that position on an acting basis. Mr. Hasan had appealed that acting appointment, and has also appealed the permanent appointment. His appeal of the permanent appointment is the subject of this application.
[7] The question before me is whether the Appeal Board had the jurisdiction to hear Mr. Hassan"s appeal. The answer depends upon the scope of section 21, and the rights of appeal granted by subsections 21(1) and 21(1.1) of the Public Service Employment Act .
[8] Subsection 21(1) did not give Mr. Hasan the right to appeal the appointment of Mr. Allen from the eligibility list. That is because Mr. Hasan was not a candidate for the position of Director, Programs which was the process by which the eligibility list was established.
[9] However, the appointment of Mr. Allen was "made from within the Public Service by a process of personnel selection, other than a competition". The creation of the eligibility list was the result of a competition, but the choice of Mr. Allen for the position of Chief of Appeals was not. The transcript of the hearing indicates that counsel for the Attorney General conceded that Mr. Hasan met the criteria established under subsection 13(1) for the position of Chief of Appeals (applicant"s record, page 62-3). From that I conclude that subsection 21(1.1) gave Mr. Hasan the right to appeal the permanent appointment of Mr. Allen to the position of Chief of Appeals.
[10] It follows that the Appeal Board Chairperson had the jurisdiction to hear his appeal. The Appeal Board Chairperson was wrong when he concluded that he did not have jurisdiction.
[11] The Appeal Board Chairperson approached the question of jurisdiction from a different perspective than I have done. His view, in effect, was that the threshold question in this appeal was whether or not the position of Director, Programs was similar to the position of Chief of Appeals. He seems to have reasoned that if the positions were similar, the appointment would be valid and the appeal would necessarily fail. But instead of expressing the analysis in that way, he expressed it as a question of jurisdiction. In doing so, he confused the issue of jurisdiction with the substantive issues raised by Mr. Hasan.
[12] The hearing was quite lengthy and dealt with a considerable volume of evidence on the question of whether the two positions were similar, as well as other issues, and the Appeal Board Chairperson reached certain conclusions on those issues. I have reviewed the record in some detail in an attempt to determine whether or not the Appeal Board Chairperson's method of analysing the question of jurisdiction led him to exclude evidence that would have been relevant to the substantive issues on which he reached a conclusion. In the result, I cannot conclude with any confidence that he permitted all relevant evidence to be heard, because it is impossible to determine how Mr. Hasan would have presented his case if the Appeal Board Chairperson had not insisted on determining the question of the similarity of the positions as a threshold question.
[13] For that reason, this application for judicial review must be allowed with costs, and Mr. Hasan"s appeal must be referred for reconsideration by a differently constituted Appeal Board.
Karen R. Sharlow
Judge
Ottawa, Ontario
January 17, 2000
[14]
Date: 20000117
Docket: T-1760-98
Ottawa, Ontario, the 17th day of January 2000
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
S.M. KHALIL HASAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
(Revenue Canada) and BRUCE ALLEN
Respondents
ORDER
This application for judicial review is allowed with costs, and Mr. Hasan"s appeal is referred for reconsideration by a differently constituted Appeal Board.
Karen R. Sharlow
Judge
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