Date: 19981109
Docket: T-649-98
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
KHALIL HASAN
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review pursuant to subsection 18.1(1) of the Federal Court Act [R.S.C. 1985, c.F-1] [as amended] in which the Attorney General of Canada seeks an order setting aside a report by Ms. Cynthia Sams, Deployment Investigator, dated March 4, 1998, in which Ms. Sams found that Ms. Tanse Leung"s deployment, dated August 27, 1997, to the position of AU-05 Manager, Large Business Audit, Verification and Enforcement Division of Revenue Canada, Toronto Centre, was in breach of subsection 34.2(2) of the Public Service Employment Act [R.S.C. 1985, P-33] [as amended] ("the Act"), and an abuse of authority. The respondent, Mr. Hasan, had filed a complaint about Ms. Leung"s deployment, which was the subject of Ms. Sams" investigation and report.
| B. THE FACTUAL BACKGROUND |
[2] This proceeding arises from a long-standing dispute about the selection process by which six public service employees within Revenue Canada were promoted in April 1995 from AU-04 positions to AU-05 positions in the Department as a result of a closed competition. Pursuant to subsection 21(1) of the Act one of the unsuccessful candidates appealed against these promotions to an appeal board established by the Public Service Commission.
[3] The appeal board, chaired by Mr. A.H. Rosenbaum, allowed the appeal in December of 1995, having found that the selection process was flawed. In particular, he ruled that the assessment of candidates against the "Abilities" qualification by teams of three members of the Selection Board was likely to be inconsistent, since there were no members who were common to all the teams, and there were no well defined criteria of assessment. An application to review the appeal board"s decision has been made to this Court, and is still pending.
[4] Meanwhile, one of the candidates who was promoted to the position of AU-05 Audit/Special Audit, Ms. Tanse Leung, was deployed by the deputy head to another AU-05 position (Manager, Large Business Audit), also in the Toronto Centre of Revenue Canada, and the deployment agreement was signed on August 27, 1997.
[5] Pursuant to subsection 34.3(1) of the Act, Mr. Hasan, the respondent to this application for judicial review, complained to the deputy head about Ms. Leung"s deployment. The ground of his complaint was that, since Ms. Leung"s promotion to an AU-05 position in April 1995 had been successfully appealed to the appeal board chaired by Mr. Rosenbaum, she was not a "substantive AU-05" because the Commission ought to have revoked her appointment when the appeal board issued its decision. Accordingly, her subsequent deployment to another AU-05 position was in substance a promotion, and subsection 34.2(2) of the Act provides that "No employee shall be deployed in a manner that results in a promotion ... of that employee."
[6] Dissatisfied with the deputy head"s dismissal of his complaint, Mr. Hasan referred the complaint to the Public Service Commission pursuant to subsection 34.4(1) of the Act and, as required by subsection 34.4(2), the Commission referred Ms. Leung"s deployment to an investigator, Ms. Sams.
[7] Ms. Sams found that, in deploying Ms. Leung to another AU-05 position, the Commission had thereby promoted her because, in the absence of an application to the Federal Court for a stay of the appeal board"s order, the Commision should have given effect to the decision of the appeal board and revoked the promotion of Ms. Leung, and of the other five candidates. Moreover, Ms. Sams held that deploying Ms. Leung in these circumstances was an improper exercise of the deputy head"s discretion over deployment within the Department. In her report of March 4, 1998, Ms. Sams recommended the revocation of the deployment of Ms. Leung.
[8] On receipt of the investigator"s report, the Attorney General, with the concurrence of the Public Service Commission, made this application for judicial review. The applicant alleges that, as a deployment investigator, Ms. Sams had no jurisdiction to go behind the Commission"s designation of Ms. Leung as an AU-05. Moreover, Ms. Sams erred in law in concluding that the Commission had no authority under subsection 21(3) of the Act to delay implementing the decision of the appeal board, which had upheld the appeal against Ms. Leung"s promotion to an AU-05 position, pending the disposition of the proceeding filed in this Court to challenge the appeal board"s decision.
| C. THE STATUTORY FRAMEWORK |
[9] The provisions dealing with deployment came into effect in 1993 as amendments to the Act made by Bill C-26, popularly known as "Public Service 2000". The amendments removed deployment from a strict application of the merit principle, thus increasing the managerial discretion exercisable by the deputy head over staffing.
[10] In order to protect public servants from bureaucratic favouritism or animosity, Bill C-26 placed three limits on the deputy head"s discretion: first, the requirement that the deployed person consent to the deployment; second, the right of others to complain that the deployment was unauthorized, made in breach of the Act or constituted an abuse of authority, and to require the Commission to appoint an independent person to investigate the deployment and to make recommendations; and third, a prohibition on the deputy head"s promoting a person through exercising the power to deploy.
[11] The following provisions of the Public Service Employment Act are relevant to this application.
| 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 from 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.
(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.
(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.
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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 générale 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.
(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.
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| 34.1 (1) Except as provided in this Act or any other Act, a deputy head has the exclusive right and authority to make deployments to or within that part of the Public Service over which the deputy head has jurisdiction.
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34.1 (1) Sauf disposition contraire de la présente loi ou de toute autre loi, l'administrateur général a le droit exclusif de muter au secteur relevant de sa compétence des fonctionnaires en provenance de l'extérieur ou de procéder à des mutations au sein de ce secteur.
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| (2) No employee shall be deployed in a manner that results in a promotion or a change in the tenure of office of that employee.
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(2) Aucune mutation ne peut avoir pour résultat la promotion du fonctionnaire ou la modification de la durée de ses fonctions.
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| 34.3 (1) An employee who is deployed and any other employee in the work unit to which the deployment is made may, within such period and in such manner as the Treasury Board may provide for, complain to the deputy head concerned that the deployment was not authorized by, or made in accordance with, this Act or constituted an abuse of authority.
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| 34.3 (1) Le fonctionnaire qui est muté, ainsi que tout autre fonctionnaire du service où il l'a été peut, dans le délai et selon les modalités fixés par le Conseil du Trésor, déposer une plainte auprès de l'administrateur général compétent au motif que la mutation n'est pas autorisée par la présente loi ou n'a pas été effectuée conformément à celle-ci, ou qu'elle constitue un abus de pouvoir.
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| (3) On receiving a complaint under subsection (1), the deputy head shall review the deployment in such manner as the Treasury Board may direct and, after considering the results of the review, shall take such corrective action, including revocation of the deployment, as the deputy head considers appropriate.
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(3) Sur réception de la plainte, l'administrateur général révise la mutation selon les modalités fixées par le Conseil du Trésor et, selon les résultats, prend les mesures de redressement qu'il juge indiquées, y compris l'annulation de la mutation.
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| 34.4 (1) An employee who lodged a complaint under subsection 34.3(1), or whose deployment is the subject of such a complaint, and who is not satisfied with the disposition of the complaint or any corrective action taken in respect thereof, may, within the period provided for by the regulations of the Commission, refer the complaint to the Commission.
(2) On the referral of a complaint under subsection (1), the Commission shall designate a person to investigate the deployment.
(3) An investigator designated under subsection (2) shall conduct the investigation in such manner as the Commission may prescribe and give the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head an opportunity to be heard.
(4) On completion of the investigation, the investigator shall prepare and send to the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head a report in writing setting out such findings and recommendations with respect to the deployment as the investigator sees fit.
1992, c. 54, s. 22.
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| 34.4 (1) Le fonctionnaire qui n'est pas satisfait des résultats obtenus à la suite d'une plainte déposée en application du paragraphe 34.3(1) peut, dans le délai prévu par règlement de la Commission, renvoyer la plainte à la Commission.
(2) Dès le renvoi de la plainte, celle-ci désigne un enquêteur.
(3) L'enquêteur procède de la manière déterminée par la Commission et donne à l'auteur du renvoi, au fonctionnaire muté et à l'administrateur général l'occasion d'être entendus.
(4) Au terme de l'enquête, l'enquêteur établit un rapport assorti de ses conclusions et recommandations touchant la mutation et le fait parvenir à l'auteur du renvoi, au fonctionnaire muté et à l'administrateur général.
1992, ch. 54, art. 22
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34.5 (1) If the investigator is not satisfied with the response of the deputy head to a report prepared under subsection 34.4(4), the investigator shall report the matter to the Commission.
(2) On receiving a report under subsection (1), the Commission may order the deputy head to take such corrective action, including revocation of the deployment, as the Commission considers appropriate.
(3) The Commission may not, pursuant to subsection (2), direct a deputy head to deploy any employee.
1992, c. 54, s. 22.
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| 34.5 (1) L'enquêteur qui n'est pas satisfait des mesures prises par l'administrateur général à la suite du rapport en rend compte à la Commission.
(2) Sur réception du compte rendu la Commission peut ordonner à l'administrateur général de prendre les mesures de redressement qu'elle juge indiquées, y compris l'annulation de la mutation.
(3) La Commission ne peut s'autoriser du paragraphe (2) pour imposer une mutation à l'administrateur général.
1992, ch. 54, art. 22.
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| [12] 1. Did the deployment investigator exceed her legal authority when she investigated whether Ms. Leung held a "substantive" AU-05 position at the time that she was deployed to her present AU-05 position? |
| 2. Did the deployment investigator err in law in holding that subsection 21(3) of the Act did not authorize the Commission to refuse to give effect to the appeal board"s decision pending the outcome of the application for judicial review of that decision? |
| 3. Did the deployment investigator err when she concluded that on the facts before her the deployment of Ms. Leung was not in accordance with the Act and an abuse of authority? |
| 4. Should the Court in its discretion refuse to grant relief, on the ground that the application for judicial review is premature, since the deployment investigator"s report and recommendations have not yet been referred to the Public Service Commission for its consideration in accordance with section 34.5 of the Act? |
Issue 1
[13] It will be useful to summarize the above statutory provisions as they apply to this case before I consider the argument advanced by Ms. Hucal on behalf of the Attorney General that Ms. Sams had no authority to rule on the legal status of the appeal board"s decision allowing an appeal against Ms. Leung"s promotion to an AU-05 position prior to her deployment.
[14] First, subsection 34.3(1) of the Act states that an employee in the work unit to which the deployment was made may complain to the deputy head that the deployment was "not authorized by or made in accordance with this Act or constituted an abuse of authority." Mr. Hasan complained under this subsection that Ms. Leung"s deployment was contrary to the Act, and an abuse of discretion, because the appeal board had reversed her promotion to an AU-05, so that, since she was "substantively" an AU-04, her deployment was a promotion and thus prohibited by subsection 34.2(2).
[15] Second, if the complainant is not satisfied with the deputy head"s disposition of the complaint, the complainant may refer "the complaint" to the Commission under subsection 34.4(1) of the Act. Subsection 34.4(2) provides that "on the referral of a complaint under subsection (1), the Commission shall designate a person to investigate the deployment."
[16] Third, an investigator so appointed shall conduct the investigation and give the interested persons an opportunity to be heard (subsection 34.4(3)), and shall prepare and send to them "a report in writing setting out such findings and recommendations with respect to the deployment as the investigator sees fit". Further, if the investigator is not satisfied with the deputy head"s response to the report, the investigator shall refer the matter to the Commission, which may order the deputy head to take such corrective action as the Commission considers appropriate, including an order to the deputy head to revoke the deployment, but not including an order directing the deputy head to deploy an employee (subsection 34.4(4), and 34.5).
[17] Ms. Hucal"s argument was that, to permit the investigator to consider whether Ms. Leung was an AU-04 or an AU-05 would be to enter into a consideration of the legal status of the appeal board"s decision allowing the appeal against the promotions, a matter that is the subject of another application for judicial review in this Court. In other words, she argued, by complaining against Ms. Leung"s deployment, Mr. Hasan was seeking another avenue for impugning the appeal board"s decision. The Act should not be interpreted to permit a multiplicity of proceedings in respect of the same matter.
[18] I am unable to accept this argument. To allow the investigator to consider the legal effect of the appeal board"s ruling on the position held by Ms. Leung pending the disposition of the application for judicial review is not, with respect, to allow the deployment investigator to determine matters that will be decided by this Court in the pending application. It is not clear to me that Ms. Leung"s status in the period after the appeal board made its decision and the Federal Court disposes of the application for judicial review will be relevant in that proceeding.
[19] In my opinion, it is more helpful to examine the statutory language in which the investigator"s functions are defined, and to consider how it should be interpreted in the overall context of this part of the Act. If the statute had provided that, on the referral to the Commission of a complaint about deployment, the Commission was obliged to refer the complaint to the investigator, and the investigator was to prepare a report on the complaint, Ms. Sams would clearly have had the authority to consider the complainant"s allegation that, as a result of the appeal board"s decision, and the Commission"s failure to implement it, the deployment of Ms. Leung was in breach of the Act or an abuse of discretion.
[20] However, as I noted earlier, the statutory language distinguishes between the complaint, which the complainant may refer to the Commission, and the deployment, which the Commission shall designate a person to investigate, and on which the person so designated shall prepare a report and make recommendations. Does this choice of language indicate that Parliament intended to preclude the investigator from considering the complaint, at least when it raises outstanding legal issues that are the subject of another application for judicial review?
[21] To get one point out of the way at the beginning, it is clear that Ms. Sams was not precluded from considering whether Ms. Leung"s deployment constituted a promotion because a "deployment" is limited to a transfer to a position at the same level as that previously held by the deployed person. Subsection 2(1) defines deployment more broadly to mean "the transfer of an employee from one position to another". Moreover, subsection 34(2) provides that a person shall not be deployed in a manner that results in a promotion. In other words, it cannot be inferred from the fact that the subject of the investigation is "the deployment" that the investigator is not authorized to determine whether the person deployed was not also thereby promoted.
[22] In this case, it might be suggested that the investigator went beyond investigating the "deployment" when she considered the legal effect of the appeal board"s decision, which was made some 18 months prior to the deployment , and was therefore not within the jurisdiction that she was given under the Act. However, since the power to investigate the deployment obviously includes an investigation of its propriety, the deployment investigator must be able to consider any matters that are relevant to that inquiry, including events that took place before the deployment occurred.
[23] A more plausible interpretation of the relevant statutory provisions is that, by requiring the Commission to refer "the deployment" to an investigator, Parliament thereby intended the investigator to consider every aspect of the deployment, and not simply those aspects that were the subject of the complaint. For example, an investigator might find that the complaint was justified, and yet still recommend that, in all the circumstances, the deployment should not be revoked. Conversely, the investigator might recommend the revocation of the deployment on grounds quite different from those contained in the complaint. A broad interpretation of the scope of the investigator"s jurisdiction is consistent with the overall scheme of the 1993 amendments as described above in paragraphs [7] and [8].
[24] Accordingly, I conclude that the investigator did not exceed the scope of her authority by considering whether Ms. Leung"s earlier promotion from an AU-04 to an AU-05 had been effectively cancelled as a result of the appeal board"s decision allowing the appeal of an unsuccessful candidate.
ISSUES 2 AND 3
[25] If, as I have concluded, Ms. Sams was authorized to consider whether Ms. Leung"s promotion remained effective after the appeal board"s decision, the next question is whether Ms. Sams was correct to hold that subsection 21(3) of the Act does not authorize the Commission to delay giving effect to the appeal board"s decision unless, and until, the appeal board"s decision is set aside on an application for judicial review.
[26] Again, it will be helpful to summarize the provisions of the statutory scheme as they relate to the appeal board"s decision in this case. First, unsuccessful candidates for an appointment made from within the Public Service by closed competition, as was the case with Ms. Leung"s promotion to an AU-05 position, may appeal to a board established by the Commission, when the interested persons will be given an opportunity to be heard (subsection 21(1)).
[27] Second, "subject to subsection 3", when notified of the board"s decision the Commission shall "in accordance with the decision of a board, confirm or revoke the appointment" (subsection 21(2)). Third, subsection 21(3) provides that, when the board determines that "there was a defect in the process for the selection of a person for appointment ... the Commission may take such measures as it considers necessary to remedy the defect."
[28] The appeal board in this case allowed the appeal on the ground that the selection process had been conducted in part in a manner that was not conducive to producing consistent assessments of the candidates for the AU-05 positions. The appeal board"s decision can thus be characterized as determining that there was a "defect in the process" of selection within the meaning of subsection 21(3).
[29] Ms. Hucal argued that the discretion conferred on the Commission by subsection 21(3) was broad enough to enable it to delay the discharge of its statutory duty under subsection 21(2) to revoke the appointment of Ms. Leung "in accordance with the decision of a board", pending the disposition by this Court of the judicial review of the appeal board"s decision instituted by the Attorney General.
[30] She argued that, without such a discretion, the ability of senior management of a Department to ensure that there was adequate and appropriate staffing to enable it to discharge its functions would be seriously jeopardized. To support this contention it might be noted that nearly three years have elapsed since the appeal board issued its decision, and the application for judicial review is still to be heard. To limit the deputy head"s ability to deploy staff in the most effective and efficient manner for such a period might well be highly detrimental to the public interest in good administration.
[31] Ms. Hucal was careful not to offer a comprehensive definition of the scope of the discretion conferred by subsection 21(3) of the Act. She was concerned only to argue that the discretion was broad enough to permit the Commission to delay the discharge of its statutory duty under subsection 21(2) pending the disposition of the judicial review proceeding. In other words, the argument is that subsection 21(3) enables the Commission to stay the implementation of the appeal board"s order, as it sees fit.
[32] I am unable to accept this argument. First, the wording of subsection 21(3) of the Act does not readily lend itself to the interpretation urged by Ms. Hucal. It provides that when an appeal board "determines that there was a defect in the process for the selection of a person for appointment", the Commission "may take such measures as it considers necessary to remedy the defect". Assuming that the defect identified by the appeal board in this case is appropriately characterized as a "defect in the selection process", then any measures taken by the Commission pursuant to subsection 21(3) must be such as it considers necessary to remedy that defect.
[33] I have some difficulty in seeing how suspending the implementation of the appeal board"s decision pending the determination of the judicial review application is rationally related to remedying the defect in the selection process identified by the appeal board. In her report, Ms. Sams made this point well when she wrote:
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"Continuing the appointments had little to do with the remedy of the defect. In fact, in this case it resulted in the perpetuation of the problem because of the subsequent deployment". |
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[34] Ms. Hucal"s argument was that the suspension was necessary to enable the Commission to take what deployment measures it thought necessary in the interim period. She did not argue that the Commission"s delay in implementing the decision was intended to correct the flaw in the selection process for the promotion to the AU-05 positions, which, the board found, resulted in a process that was not calculated to ensure that the selection criteria were applied consistently to all the candidates. Despite the subjective wording of the discretion conferred on the Commission by subsection 21(3), its exercise is still reviewable to ensure that there is a rational relationship between the Commission"s stated purpose, and the statutory objectives.
[35] Of course, because the Act confers a discretion on the Commission, it may properly decide that no measures should be taken under subsection 21(3) of the Act. In such a situation, it must simply implement the appeal board"s decision as directed by subsection 21(3). As Ms. Sams observed in her report:
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"Revocation of an appointment, following an appeal being upheld, serves to ensure that the merit principle is protected by erring on the side of the Appeal Board findings. The results of continuing the appointments are disastrous to that principle and to the credibility of the appeal process." |
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[36] Second, a document issued by the Public Service Commission of Canada, Appeals and Deployment Recourse Department, Appeal Board Practice and Procedures Guide, suggests that the Commission has not previously taken the view of its power under subsection 21(3) that has been advanced in this case. Rather, chapter 9.2 of the Guide states:
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BINDING EFFECT OF AN APPEAL BOARD DECISION |
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An appeal board decision is final and immediately binding on the parties and the successful candidates and remains so as long as it has not been quashed by the Federal Court, or unless a stay of execution has been granted by the court. |
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[37] While this document is not, and does not purport to be, an authoritative interpretation of the relevant provisions of the Public Service Employment Act, it acknowledges that the Commission is not without an effective remedy for avoiding the potentially serious disruptive effects of an appeal board"s decision prior to the determination of a challenge to it in the Federal Court: it may seek a stay of execution from the Court. Moreover, the fact that the document suggests that the interpretation of subsection 21(3) adopted by the Commission in this case is not one that has been consistently adopted and applied by the Commission removes a potential obstacle to judicial intervention.
[38] Ms. Hucal argued that is was not possible for the Commission to apply for a stay of execution of the board"s decision because it had issued no order that could be stayed. This seems a very formalistic position, and one with which I disagree. I see no reason why the Commission could not have sought a stay of execution of the decision, as chapter 9.2 of the Guide envisaged, the practical result of which would have been to relieve the Commission of its statutory duty to implement the decision, pending the determination of the application for judicial review.
[39] Indeed, I note that in the application for judicial review before me that the relief requested includes an interim order "(if necessary)" staying the execution of Mr. Sams" "decision", even though Ms. Sams has issued no order, but has only made a recommendation, on which the Commission may act by issuing a directive to the deputy head.
[40] In my opinion, therefore, the Commission exercised its discretion under subsection 21(3) for an improper purpose or by taking into account an irrelevant consideration, and the deployment of Ms. Leung was consequently an abuse of its authority.
[41] I conclude, therefore, that the deployment investigator did not err in law when she found that Ms. Leung should not have been regarded as holding an AU-05 position immediately before she was deployed to her present position, and that in refusing to give effect to the appeal board"s decision the Commission misused its discretion, so that the deployment constituted an abuse of authority.
[42] The fact that only the Commission, and not the appeal board, may formally revoke Ms. Leung"s promotion does not justify the Commission"s conduct in this case. To borrow an equitable principle, Ms. Sams was right to regard the Commision as having done that which it was under a legal duty to do, so that at the time of her deployment Ms. Leung held a "substantive" AU-04 position.
[43] In view of this conclusion, I need not address the argument advanced by Mr. Hasan, namely that relief should be refused in the exercise of the Court"s discretion because the application for judicial review is premature.
[44] Accordingly, the application for judicial review is dismissed.
VANCOUVER, BRITISH COLUMBIA
November 9, 1998. J.F.C.C.
[45] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-649-98
STYLE OF CAUSE: Attorney General of Canada
v.
Khalil Hasan
REASONS FOR ORDER OF EVANS, J.
dated November 9, 1998
APPEARANCES BY:
| Ms. Kathryn Hucal for the Applicant |
| Mr. Khalil Hasan on his own behalf |
SOLICITORS OF RECORD:
| Mr. Morris A. Rosenberg for the Applicant |
| Deputy Attorney General of Canada |
| Mr. Khalil Hasan on his own behalf |
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