Date: 19990625
Docket: T-1151-98
BETWEEN:
GREG SAMPSON
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DUBÉ J:
[1] This application is for the judicial review of a letter ("the decision") dated May 12, 1998, sent by the President of the Public Service Commission of Canada ("the Commission") to counsel for the applicant informing him why the applicant was not appointed to an indeterminate position with Citizenship and Immigration Canada ("the Department") in London, Ontario.
1. Facts
[2] The applicant had been working on a term basis as a CR5 Immigration Counsellor Assistant for the Department in London, Ontario, since October 1, 1990. On July 29, 1993, he was declared the successful candidate in a closed competition for an indeterminate position as a CR5 Immigration Counsellor Assistant at that office.
[3] Ms Valerie Clark, a candidate who finished fourth in the same competition, filed an appeal against his appointment pursuant to section 21 of the Public Service Employment Act1 ("the Act"). The applicant was not appointed pending the outcome of the appeal proceedings.
[4] On February 11, 1994, the Public Service Commission Appeal Board ("the Appeal Board"), allowed Ms Clark"s appeal. An application for judicial review of that decision brought by the Attorney General of Canada was dismissed on June 19, 1995, by the Federal Court, Trial Division. The Attorney General successfully appealed that decision to the Federal Court of Appeal on May 16, 1997. That Court returned the matter to the Appeal Board for redetermination on the basis that the appeal must be dismissed. Consequently, on May 28, 1997, the Appeal Board dismissed Clark"s appeal against the applicant"s appointment.
[5] On June 11, 1997, the applicant wrote to his local Manager requesting that he be appointed to the position in respect of which he had been declared the successful candidate four years earlier. The Manager indicated that, due to anticipated staff reductions, he did not foresee him being retained for the London office. On March 31, 1998, the applicant was released from the public service on the expiration of his term of employment.
[6] On April 2, 1998, counsel for the applicant wrote to the President of the Commission urging the appointment of the applicant to the CR5 position. The President of the Commission, Ms Ruth Hubbard, denied the request and her letter in reply is the decision under attack.
2. The President's Decision
[7] In her letter the President reviewed the facts of the case and stated that the applicant had been notified of his success in the 1993 competition but that "no offer of appointment was proposed". At the conclusion of the appeal proceedings in 1997, "there was no position to which Mr. Sampson could be appointed" because of lack of funding. Ten months later or on April 1, 1998, two new counsellor assistant positions were created and the staffing of these two positions was advertised through a recent competition.
[8] The President noted that the Department had "undergone a major reorganization during the period of 1993 through 1998" which resulted in a staffing freeze. Almost five years have elapsed since the establishment of the original eligibility list which restricts the eligibility to two years. The relative merits of candidates may well have changed over that period.
3. Issues
[9] The central issue in this application is whether the Commission is required under subsection 21(2) of the Act to make or confirm the appointment of the applicant in the circumstances of this case. Subsections 21(2) and (3) read as follows:
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(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, |
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(a) if the appointment has been made, confirm or revoke the appointment; or |
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(b) if the appointment has not been made, make or not make the appointment. |
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(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 the appointment under this Act, the Commission, may take such measures as it considers necessary to remedy the defect. |
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4. The Applicant's Submissions
[10] The applicant submits that the wording of subsection 21(2) of the Act is unambiguous and mandatory: the Commission must either "confirm" the impugned appointment under paragraph 21(2)(a), or "make" the impugned appointment under paragraph 21(2)(b). He contends that the Commission has no lawful authority to ignore or contravene the decision of an Appeal Board. Doing so constitutes a flagrant violation of the Act, undermines the appeal process and shows total disregard for the decision of the Federal Court of Appeal.
[11] Even if the appointment was not technically made on July 29, 1993, the applicant acted in that position for almost four years after being declared successful in the competition. Subsection 21(3) provides that where a Board determines that there was a defect in the process for the selection, the Commission may take such measures as it considers necessary to remedy the defect. But, in the instant case, there was no such defect and the Commission has the obligation to abide by the final decision of the Appeal Board.
[12] The very purpose of the section 21 appeal process is to ensure that the principle of selection by merit is observed. Thus, when the appeal was dismissed, the merit principle and subsection 21(2) mandated that the most meritorious candidate be appointed. This is not really a case where a position ceases to exist since the applicant continued to work in that position more than ten months after the Appeal Board dismissed the only appeal to his appointment.
[13] The fact that the eligibility list expired before the appeal process was completed is irrelevant. The expiry of an eligibility list does not extinguish the statutory rights of a successful candidate. To hold otherwise would wreck havoc on the existing appeal process, encouraging unsuccessful candidates to unnecessarily delay appeal proceedings with frivolous and time-consuming legal gambits designed only to extend the final Appeal Board decision until after the expiry of the original eligibility list. The protection of the right of incumbents and the need for stability in the labour force mandate that the imperatives of the merit principle shall not come into play only periodically.
[14] Still according to the applicant, there must have been an appointment to sustain an appeal; otherwise, the appeal would be without purpose. On May 28, 1997, the date of the Appeal Board's dismissal of Ms. Clark's appeal against the applicant's appointment, the position existed because the applicant himself was occupying it. The appointment and the appeal thereof are necessarily intertwined. Consequently, under subsection 21(2) of the Act, the Commission has the obligation to "confirm" the appointment and, in the alternative, if the appointment has not technically been made, the Commission has the obligation to "make" it.
5. The Respondent's Submissions
[15] The respondent submits that subsection 21(2) of the Act does not compel the Commission to make an appointment in all cases where an Appeal Board dismisses an appeal against a proposed appointment. It does not compel the Commission to make an appointment if there is no vacancy to be filled at the time the appeal is dismissed. The Commission, or the Department exercising the power of appointment delegated by the Commission, has the discretion whether or not to make an appointment to the public service.
[16] Subsection 21(2) does not operate so as to preclude the Commission, or a Department, from deciding, for budgetary or other policy reasons, not to make an appointment. There is no justification for interpreting subsection 21(2) in a manner which would interfere with that discretion. The mere fact that a candidate was successful at a competition and ranked first on the eligibility list does not vest him with a right to be appointed. It means that when there is an opportunity for promotion the most meritorious person should be promoted2.
[17] The process whereby a position is created and an appointment is made involves four discrete steps. In Brault and Dubois v. Canada3, the Supreme Court of Canada summarized these steps as follows:
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1. The Minister or deputy head of a Department, in the exercise of his management authority, determines what positions are required in the Department and determined the qualifications for appointment to them; 2. Financial approval for a position must be obtained from the Treasury Board, which has authority under s. 7 of the Financial Administration Act, R.S.C. 1970, c. F-10, to classify positions in the Public Service for remuneration and other purposes; 3. The deputy head makes a request to the Public Service Commission to make the necessary appointment or makes the appointment himself under a delegation of authority; 4. The appointment is made pursuant to the particular selection process required by the Public Service Employment Act and Regulations.... |
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[18] The Brault decision also stands for the proposition that where a Department makes significant or substantial changes to existing functions which call for the evaluation of additional or special qualifications, then a new position is created and a new evaluation to select a candidate must be carried out. In Noël v. M.E.I.4, the Federal Court of Appeal stated that where the Commission confirmed or revoked the appointment "in accordance with the decision of an Appeal Board, it is clear from the text of section 21 that the appeal is against the appointment and that the Commission is bound by the decision reached by the appeal board". But, the Court also added that "because there is no longer an appointment, no confirmation or revocation of the appointment is possible".
6. The Scheme of the Act
[19] The language of subsection 21(2) has to be viewed in the context of the Act and the Public Service Employment Regulations. Paragraph 5(a) of the Act stipulates that the Commission shall appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of the Act. Section 8 provided that the Commission has the exclusive right and authority to make appointments to or from within the Public Service. Under subsection 10(1), such appointments shall be based on selection according to merit, as determined by the Commission.
[20] Pursuant to subsection 13(1), the Commission may establish occupational criteria for a competition. Subsection 16(1) directs that the Commission shall examine and consider all applications and shall select the candidates who are qualified for the position. Subsection 17(1) prescribes that among the qualified candidates in a competition, the Commission shall select and place the highest ranking candidates on an eligibility list to provide for "the filling of a vacancy or anticipated vacancies".
[21] Subsection 18(1) states that the competition shall be made from an eligibility list "in accordance with the regulations of the Commission". Subsection 21(1) provides for appeals, where a person is appointed or is "about to be appointed".
[22] Under Part III of the Act, tenure is defined in section 22 which states that an appointment takes effect on the dates specified in the instrument of appointment. Pursuant to section 25, an employee who is appointed for a specified period ceases to be an employee at the expiration of that period.
[23] Section 8 of the Public Service Employment Regulations provides that the Commission may establish an eligibility list "for a period of not more than two years". Section 13 provides that "where an appointment is to be made" from an eligibility list, the candidate ranking highest on the list shall be appointed to the position.
7. Disposition
[24] Thus, the scheme of the Act and the Regulations indicate that the Commission or the Department has the discretion whether or not to make an appointment to the Public Service. There are no provisions compelling the Commission to appoint a person to a position which does not exist. Where an appointment is contemplated it must be made in accordance with the merit principle. The eligibility list is merely a list of persons eligible to fill a vacancy and does not vest any person with a right to be appointed to a position. Where there are no vacancies or anticipated vacancies, there can be no appointment. There are no provisions in the legislation to the effect that the discretion of the Commission is removed by the mere filing of an appeal by an unsuccessful candidate or ensuing court proceedings.
[25] Consequently, although the disappointment of the applicant is understandable, the respondent was not obligated to appoint him to the position he occupied on a term basis. It follows that the application is dismissed.
OTTAWA, ONTARIO
June 25, 1999
Judge
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1 R.S.C. 1985, c. P-33.
2 Leckie v. Canada, [1993] 2 F.C. 473.
3 [1987] 2 S.C.R. 489.
4 (1991), 136 N.R. 398 F.C.A. (at pp. 400 and 401).
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