SUPREME
COURT OF CANADA
|
Citation:
Canada (Attorney General) v. Kane, 2012 SCC 64, [2012] 3 S.C.R.
398
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Date:
20121123
Docket:
34147
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Between:
Attorney
General of Canada
Appellant
and
Robert
Kane
Respondent
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Karakatsanis JJ.
|
Reasons for
Judgment:
(paras. 1 to 11)
|
The Court
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Canada (Attorney General) v. Kane, 2012 SCC 64, [2012] 3
S.C.R. 398
Attorney General of Canada Appellant
v.
Robert Kane Respondent
Indexed as: Canada (Attorney General) v. Kane
2012 SCC 64
File No.: 34147.
2012: November 6; 2012: November 23.
Present: McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the federal court of appeal
Administrative law — Judicial
review — Standard of review — Public Service Staffing Tribunal
concluding that decision by employer to staff position by means of advertised
process did not constitute abuse of authority — Whether decision of
Tribunal reviewable on standard of reasonableness.
K was employed by Service Canada
in a position classified at the PM‑05 level. As part of a
reorganization, the position of Regional Manager was created at the PM‑06
level. The employer decided to fill the PM‑06 position through an
internal advertised process. K applied to the competition but failed a
mandatory examination. K filed a complaint with the Public Service Staffing
Tribunal stating an abuse of authority contrary to the Public Service
Employment Act . The Tribunal dismissed K’s claim because he had not
established abuse of authority. The Federal Court affirmed the Tribunal’s
decision. The Federal Court of Appeal allowed the appeal and sent this case back to the Tribunal.
Held: The appeal should be allowed
and the decision of the Tribunal affirmed.
The decision of the majority of
the Federal Court of Appeal must be set aside for four reasons. First, there
is nothing in either the Public Service Employment Act or the Public
Service Employment Regulations which requires a deputy head to utilize a
particular selection process. Second, the majority assessed the decision of
the Public Service Staffing Tribunal against a claim that K did not make. Third,
the decision to send this case back to the Tribunal was based on the majority’s
reading of the “principal justification” for the employer’s decision but the
Tribunal made no finding as to what the employer’s “principal justification”
may have been. Finally, there was no realistic possibility that the Tribunal
could find an irrational finding of fact in this case.
Statutes and Regulations Cited
Public Service Employment Act , S.C.
2003, c. 22, s. 33 .
APPEAL from a judgment of the
Federal Court of Appeal (Evans, Dawson and Stratas JJ.A.), 2011 FCA 19, 413
N.R. 351, 328 D.L.R. (4th) 193, 36 Admin. L.R. (5th) 48, [2011] F.C.J. No. 79
(QL), 2011 CarswellNat 103, setting aside a decision of Heneghan J., 2009 FC
740, 356 F.T.R. 127, [2009] F.C.J. No. 1396 (QL), 2009 CarswellNat 3528,
dismissing an application for judicial review from a decision of the Public
Service Staffing Tribunal, 2007 PSST 35, 2007 CarswellNat 6307. Appeal allowed.
Christopher Rupar and François Joyal, for the
appellant.
Andrew Raven and Andrew Astritis, for the
respondent.
The following is the judgment delivered by
[1]
The Court — Mr. Kane was employed by Service Canada as Service Delivery
Manager of the In-Person Community Services business line, a position
classified at the PM-05 level. As part of a reorganization, the structure for
the work unit was changed and the position of Regional Manager was created at
the PM-06 level. Service Canada decided to fill the PM-06 position through an
internal advertised process. Mr. Kane applied to the competition but failed a
mandatory examination and so was unsuccessful.
[2]
Mr. Kane filed a complaint with the Public
Service Staffing Tribunal, stating: “The grounds of my complaint are that my
employer abused it [sic] authority in choosing an advertised internal
appointment process” (A.R., vol. II, at p. 149).
[3]
Before the Tribunal, Mr. Kane argued that (1)
the PM-06 position was not a new position, but a reclassification of the old
PM-05 position he had formerly held; (2) the practice in Newfoundland was not
to advertise reclassified positions, but to internally fill them by
appointment; and (3) advertising the position therefore constituted an abuse of
authority under the Public Service Employment Act , S.C. 2003, c. 22 (“PSEA ”).
[4]
The Tribunal found that Mr. Kane had not
established abuse of authority and dismissed his claim (2007 PSST 35 (CanLII)).
The Federal Court, per Heneghan J., found the Tribunal’s decision to be
reasonable and accordingly affirmed it (2009 FC 740, 356 F.T.R. 127). The
Federal Court of Appeal allowed the appeal and sent the case back to the
Tribunal for reconsideration (2011 FCA 19, 413 N.R. 351).
[5]
The majority of the Federal Court of Appeal
found that the Tribunal’s decision was unreasonable because it had failed to
consider that an abuse of authority could arise where a decision to use an
advertised appointment process was based on an unreasonable finding of material
fact. While the employer was not, under the new Act, required to consider
whether a position was new or reclassified, that was a factor that the employer
could consider. Reviewing the record in this case, the majority found that the
employer had in fact taken the newness of the PM-06 position into account when
it decided to use an advertised position. The majority was of the view that
the newness of the PM-06 position was the “principal justification” given by the
employer for choosing an advertised process. Thus, if Mr. Kane could establish
that there was “no rational basis” for the employer’s assumption that the PM-06
position was new, he might have succeeded in demonstrating that the decision to
use an advertised process was arbitrary and therefore an abuse of authority
(para. 55). The Tribunal, by failing to consider Mr. Kane’s arguments on this
point, effectively excluded from the scope of the term “abuse of authority”
decisions that are based on facts that have no rational support (para. 75).
This was, in the majority’s view, an unreasonable position for the Tribunal to
take.
[6]
In our respectful view, the decision of the
majority of the Federal Court of Appeal must be set aside for four reasons.
First and most fundamentally, the basis of Mr. Kane’s complaint was abuse of
authority “in choosing an advertised internal appointment process” (para. 91).
The Tribunal acknowledged Mr. Kane’s argument that advertising the position
constituted abuse of authority because the PM-06 position was not a new
position, but rather a reclassification. However, it held that regardless of
whether the position was new or old, Service Canada was entitled to advertise
the position, with the result that the alleged newness of the position did not
give rise to an obligation to advertise the position. The gravamen of the
complaint — that the choice of an advertised appointment process constituted an
abuse of authority — was thus addressed by the Tribunal and resolved by its
interpretation and application of the PSEA , its home statute. The
Tribunal stated:
There
is nothing in either the PSEA or the [Public Service Employment
Regulations, SOR/2005-334] which requires a deputy head to utilize a
particular selection process depending on whether the position at issue is
either a new or reclassified position. On the contrary, section 33 of the PSEA
clearly provides that the deputy head has the discretion to use an advertised
or a non-advertised appointment process. [para. 65]
[7]
This proposition, which has not been assailed as
unreasonable, was sufficient to dispose of Mr. Kane’s complaint, and made it
unnecessary to consider whether the PM-06 position was a new position. The
question of whether the PM-06 position was a new position or a reclassification
of an old position was not relevant to the ultimate issue, and had no effect on
the reasonableness of the decision of the Tribunal.
[8]
Second, the majority assessed the decision of the Tribunal against a
claim that Mr. Kane did not make. Mr. Kane assumed throughout his complaint
that if he could establish that the PM-06 position was reclassified, he would
be entitled to a non-advertised process. Relying on guidelines that had
been established under the old Act (R.S.C. 1985, c. P-33 ) and on past practice
in Newfoundland and Labrador, Mr. Kane contended that if the position was
reclassified it was no longer open to his employer to use an advertised process.
He identified the abuse of authority as the “erroneous
interpretation of the facts against the employer’s own reclassification
guidelines” (A.R., vol. I, at p. 101 (emphasis added)). In making
this argument, Mr. Kane brought evidence which established that his employer
assumed the position was new. He never tried to establish that this was the
“principal justification” for that decision; his argument did not require him
to do so. On his view, if the position was reclassified, no matter what other reasons
the employer might have had for preferring an advertised process, he was owed a
non-advertised process. The Tribunal responded to this complaint by finding
that, given the broad discretion accorded to employers under s. 33 of the
PSEA , Mr. Kane was wrong to argue that he was entitled to any particular
process. It found that the guidelines referred to by Mr. Kane were made under
the old Act and therefore no longer applied. In our view, Mr. Kane was seeking
to restrict the discretion of his employer in a way that does not accord with
the purposes or wording of the new Act. It was not unreasonable for the
Tribunal to reject this position.
[9]
Third, the decision to send this case back to the Tribunal was based on
the majority’s reading of the record to the effect that the newness of the
PM-06 position was the “principal justification” for the employer’s decision.
The Tribunal noted that s. 33 of the PSEA gives the employer broad
discretion with respect to the choice of an appointment process, which includes
the discretion to advertise simply because it thinks that more people should
have the opportunity to compete for a given position. The employer presented
evidence before the Tribunal that the Regional Management Board decided to
advertise the position “in order to have a fair, accessible and transparent
process to allow more than one person to apply, especially since this was a new
position at a higher level” (para. 28). However, the Tribunal made no finding
as to what the employer’s “principal justification” may have been.
Respectfully, the majority of the Federal Court of Appeal erred by effectively
undertaking its own assessment of the record and attributing to the employer a
“principal justification” for its decision that the Tribunal did not find. It
was not appropriate for the Federal Court of Appeal, on a judicial review, to
intervene in the Tribunal’s decision to this extent.
[10]
Finally, we respectfully disagree with the majority’s conclusion that
the Tribunal acted unreasonably by failing to give Mr. Kane the opportunity to
show that there was “no rational basis” for the employer’s position that the
PM-06 position was new. Even accepting (without deciding) that the majority was
correct to think that a discretionary decision based on an irrational finding
of material fact would constitute an abuse of authority, there was no realistic
possibility on this record that the Tribunal could find any such irrational
finding of material fact in this case. At the very least, any reasonable
reading of the record shows that whether this position was new or reclassified
could be the subject of reasonable disagreement by reasonable people.
[11]
The appeal is allowed with costs and the
decision of the Tribunal is affirmed.
Appeal allowed with
costs.
Solicitor for the
appellant: Attorney General of Canada, Ottawa and Montréal.
Solicitors
for the respondent: Raven, Cameron, Ballantyne & Yazbeck,
Ottawa.
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