Browell v. Public Service Commission, docket T-1309-96

     T-1309-96

BETWEEN:

     AMY BROWELL

     Applicant

     - and -

     PUBLIC SERVICE COMMISSION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     This is an application for an order setting aside the decision of the Public Service Commission on corrective measures made pursuant to subsection 21(3) of the Public Service Employment Act rendered May 1, 1996.

     The events surrounding this application can be summarized as follows. The applicant, who is a public servant, was a candidate in a closed competition for the position of Legal Analyst (CO-02). The applicant was found not qualified for the position. As an unsuccessful candidate, the applicant brought an appeal under section 21 of the Public Service Employment Act and requested the Appeal Board to remedy a number of alleged defects in the selection process rather than to have the competition quashed. Nevertheless, the Appeal Board treated the application as an appeal pursuant to subsections 21(1) and 21(2) of the Act and allowed the appeal against the selection process.

     On May 1, 1996, following consultation with all interested persons, including the applicant, the Commission, acting in accordance with subsection 21(3) of the Act took such measures as it considered necessary to remedy the defect in process identified by the Appeal Board in its decision. Some of these measures were modified later. The applicant refused to accept all of the corrective measures. On June 3, 1996, the applicant brought this application for judicial review. On June 25, 1996, the Commission confirmed its intention to proceed with the corrective measures and to complete the second selection process by July 31, 1996. The applicant participated in the second process, was again unsuccessful and unsuccessfully appealed the proposed appointment of the successful candidate.

     In my opinion, the Commission properly exercised its discretionary power to take corrective measures pursuant to subsection 21(3) of the Act. In the words of the statute, it took such measures as it considered necessary to remedy the defect in the process for the selection of a person for appointment under the Act as determined by the Appeal Board. In so doing, it did not exercise its discretion for purposes extraneous to the purposes of the Act, did not exercise its discretion for an improper purpose and did not exercise its discretion in bad faith.

     Subsection 21(4) of the Act provides that an appeal may be taken under subsection (1) or (1.1) of the Act if an appointment is made or about to be made as a result of measures taken under subsection (3) against that appointment on the ground that the measures so taken did not result in a selection for appointment according to merit.

     In fact, a new competition has been held and the applicant did subsequently avail herself of the right to appeal the appointment of the successful candidate.

     Counsel for the respondent submitted that this application for judicial review could be viewed as either premature or moot, or possibly both. I prefer to deal with it on the basis that the applicant's remedy, at the time of filing the originating motion in the application for judicial review, lay in the right to appeal provided by section 21 of the Act. There were no extraordinary or exceptional circumstances to justify the intervention of this Court at that stage.

     Accordingly, this application for judicial review is dismissed.

     Counsel for the respondent sought an order for costs in the amount of $250.00. I am not satisfied that there are special reasons for doing so pursuant to Rule 1618. There will be no order as to costs.

     __________________________

     Judge

Ottawa, Ontario

February 25, 1997