Date: 19990409
Docket: T-746-98
OTTAWA, Ontario, the 9th day of April 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
ALAIN LEPAGE
Applicant
And:
ATTORNEY GENERAL OF CANADA
(Appeals Directorate)
Respondent
ORDER
ROULEAU J.
[1] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
Certified true translation
Peter Douglas
Date: 19990409
Docket: T-746-98
Between:
ALAIN LEPAGE
Applicant
And:
ATTORNEY GENERAL OF CANADA
(Appeals Directorate)
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision dated March 9, 1998, by an appeal board established by the Public Service Commission of Canada. The appeal board decided that the applicant could no longer exercise his right of appeal because there was no longer an appointment made or about to be made.
[2] The applicant is seeking a declaration that the board erred in law by failing to exercise the power under subsection 21(3) of the Public Service Employment Act,1 which allows the Commission to remedy a defect that might have invalidated the selection process.
[3] In March 1996, Health Canada personnel services published a competition poster for an acting appointment to a level CH-03 chemist position in the Criteria Section. The applicant was one of two people who responded to that poster.
[4] The applicant, who was on secondment to Health Canada from July 15, 1995, to March 31, 1996, returned to his substantive position in the Department of Natural Resources in Quebec City.
[5] On April 10, 1996, he accepted the Early Departure Incentive offered to employees who were declared surplus. His resignation took effect on May 9, 1996.
[6] The applicant"s application for the acting appointment was rejected on the basis that after May 9, 1996, he was no longer an employee of the Public Service of Canada. The other candidate thus secured the position. The appointment was from June 1, 1996, to March 31, 1997. The position was eliminated on August 1, 1997.
[7] The applicant never received any correspondence regarding his participation in the competition, so on November 20, 1996, he filed a request for investigation with the Investigations, Mediation and Conciliation Directorate of the Public Service Commission of Canada. On December 16, 1997, his request was turned down on the ground that the Directorate did not have jurisdiction to hear this appeal. On January 5, 1998, the applicant appealed to the Appeals Directorate. The jurisdiction of the appeal board is set out in section 21 of the Public Service Employment Act:
| 21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(1.1) 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 by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
(5) Section 10 and the rights of appeal provided by this section do not apply to appointments made under subsection 29(1.1) or (3), 30(1) or (2) or 39(3) of this Act or subsection 11(2.01) of the Financial Administration Act or any regulations made under paragraph 35(2)(a) of this Act.
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| 21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci :
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non.
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications.
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
5) L'article 10 et le droit d'appel prévu au présent article ne s'appliquent pas dans le cas où la nomination est faite en vertu des paragraphes 29(1.1) ou (3), 30(1) ou (2) ou 39(3) ou des règlements d'application de l'alinéa 35(2)a), ou en vertu du paragraphe 11(2.01) de la Loi sur la gestion des finances publiques.
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[8] The appeal board gave its decision on March 19, 1998. To begin with, it held that the Department was wrong to reject the applicant"s application after he left the Public Service; any candidate in a closed competition may appeal under section 21 of the Public Service Employment Act and does not lose the right to appeal or to be a candidate on termination of employment in the Public Service. However, only the merit of appointments made or about to be made may be challenged under section 21 of the Act. The board therefore dismissed the appeal on the ground that it was moot. That finding is consistent with the following passage written by Mr. Justice Décary in Noël v. Minister of Employment and Immigration (1991), 136 N.R. 398 (F.C.A.):
| Despite the sympathy that the applicant"s situation may inspire, we do not believe that it is possible, in this case, to separate the inquiry conducted by the appeal board from the decision it makes. Because there is no longer an appointment, no confirmation or revocation of the appointment is possible; accordingly, the decision of the appeal board, and then the decision of the Commission confirming that decision, and thus the appeal itself, become moot. Section 21 of the Act having ceased, in the circumstances, to be the appropriate remedy, the appeal board was correct in terminating its inquiry. It is not for this Court to decide whether there are other remedies of which the applicant could avail himself. |
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[9] It is settled that the appeal process in section 21 of the Act has the limited purpose of allowing a person to challenge an appointment made or about to be made before the appeal board. The Commission may revoke or confirm the appointment in accordance with the board"s decision. Subsection 21(3) gives the Commission the power to remedy a defect in the selection process, but does not give the Commission any more power with respect to the appointment: see Lo v. Public Service Commission Appeal Board et al. (1998), 222 N.R. 393 (F.C.A.). Accordingly, there has to be an appointment made or about to be made to challenge; otherwise an appeal under section 21 is moot.
[10] The applicant submits that the appeal board erred in law by leaving out a step in its analysis. After finding that the Department made a procedural error, the appeal board was required to expressly consider whether it should exercise its discretion under subsection 21(3) of the Act. In other words, the appeal board should have considered whether it could remedy the procedural defect of which the applicant was the victim. However, it is acknowledged that in this case, no remedy under subsection 21(3) was feasible because the challenged appointment had been terminated.
[11] I cannot accept the applicant"s argument. To begin with, the discretion under subsection 21(3) lies with the Commission, not the appeal board. Moreover, in the case at bar, there is no longer an appointment to challenge. An administrative tribunal does not err in law by disregarding a virtually pointless and inconsequential matter. The appeal under section 21 had become moot, and the appeal board rightly dismissed it.
[12] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
OTTAWA, Ontario
April 9, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-746-98
STYLE OF CAUSE: ALAIN LEPAGE
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 7, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROULEAU
DATED: APRIL 9, 1999
APPEARANCES:
Pascale-Sonia Roy For the applicant
Linda J. Wall For the respondent
SOLICITORS OF RECORD:
Nelligan Power
Ottawa, Ontario For the applicant
Morris Rosenberg
Deputy Attorney General
of Canada For the respondent
__________________
1 Public Service Employment Act, R.S.C., 1985, c. P-33.
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