Date: 20040218
Docket: T-653-03
Citation: 2004 FC 247
Ottawa, Ontario, this 18th day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
DOUG SHERB
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
PHELAN J.
Overview
[1] The issue in this application for judicial review is a narrow one: Can the Public Service Commission ("PSC"), pursuant to s. 12.1 of the Public Service Employment Act (the "Act"), conduct a review of the qualifications for a position after the selection for that position has closed?
[2] For the reasons set forth, I conclude that PSC has that jurisdiction to conduct such a review after the selection has closed.
Factual Background
[3] On October 1, 2001, the Department of National Defence ("DND") posted a Statement of Qualifications for a closed competition for the position of Deputy Platoon Chief for firefighters at Canadian Forces Base, Shilo, Manitoba.
[4] The Statement of Qualification was amended to add the successful completion of DND Fire Fighter Physical Fitness Test as one of the qualifications to be possessed by the successful candidate.
[5] The Applicant, Doug Sherb (the "Applicant" or "Sherb") was not selected for the eligibility list. Only one person was so selected.
[6] The Applicant had appealed the selection pursuant to s. 21 of the Act. Joan Stewart ("Stewart"), acting in her capacity as Chair of the Appeal Board dismissed the appeal on the grounds that an Appeal Board has no jurisdiction to review qualifications after the selection process has been completed (Sherb, 02-DND-00825, October 31, 2002).
[7] Following the appeal decision, on December 19, 2002, Sherb filed a Request for Investigation under s. 12.1 of the Act in relation to the qualifications for the Deputy Platoon Chief position.
[8] It is important to have regard for the actual Request for Investigation. The request form has the box "Irregularities in Staffing" ticked in respect of "Type of Complaint". The Applicant also specified under the heading of "Corrective Action" - "We want a review of the qualifications and the requirement of the job to be bona fides".
[9] The Applicant also indicated in his request that the issue of his being denied selection has been appealed to the Canadian Human Rights Commission on the grounds of disability discrimination.
[10] It is too much to accept that this request is not interrelated to the Applicant's appeal, which he lost, and to the complaint to the Canadian Human Rights Commission. Whether this request is some inelegant back-door attempt to overturn the appeal decision is irrelevant to the proper interpretation of the statute.
[11] Stewart was appointed as the investigator of this request. On March 17, 2003, Stewart gave her decision, which is the basis of this application for judicial review.
[12] In that decision, Stewart held that the Commission had no jurisdiction to conduct a review under s. 12.1 after the selection process had been completed. Stewart relied upon the decision of the Federal Court of Appeal in Canada (Attorney General) v. Asselin (1999) 253 N.R. 388.
Issues
[13] As with every public law decision currently, the first issue is the standard of review.
[14] The second issue is whether Stewart properly found that the PSC had no jurisdiction under s. 12.1 of the Act to conduct a review of qualification requirements where the selection process had been completed.
[15] On the second issue, Stewart concluded incorrectly in my view, that a s. 12.1 request can only be made in the context of a particular selection process and therefore, could only be considered before the process really commenced. In effect, Stewart concluded that some form of time limitation must be read into s. 12.1 of the Act.
Reasons
[16] On the first issue, the parties and the Court are in agreement that this is a pure question of law to which the correctness standard must be applied.
[17] On the second issue and as a starting point, it is important to note that s. 12.1 contains only a hint as to any time constraints:
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12.1 The Commission may review any qualifications established by a deputy head for appointment to any position or class of positions to ensure that the qualifications afford a basis for selection according to merit.
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12.1 La Commission peut réviser les qualifications établies par un administrateur général pour les nominations à tel poste ou telle catégorie de postes afin de faire en sorte que ces qualifications satisfassent au principe de la sélection au mérite.
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[18] Section 12.1 uses the future-looking term "affords" but it does so in the context of "qualifications established by a deputy head . . .". The section says nothing about precluding a request for investigation when the selection process has concluded.
[19] As I read the Asselin, supra case, it only goes part way in resolving the issue. It does not operate to preclude a person such as the Applicant from making a request under s. 12.1 in respect of future selection processes and the qualifications thereof.
[20] In Asselin, supra, the Court of Appeal was dealing with the issue of the jurisdiction of an appeal board to review the language qualifications set for a position. In the present case, there is no appeal board involved. In fact, an appeal board had already decided the merits of Sherb's challenge to the specific position selection and concluded that as a board, it had no jurisdiction to review the qualification requirements after the selection had been made.
[21] The Court of Appeal appeared to accept that s. 12.1 could be invoked as a free-standing provision separate from an appeal process. The limitation on a s. 12.1 review that the Court of Appeal held applies to the remedy which the PSC could fashion, not its jurisdiction to review. The critical passage of the judgment is:
. . . Counsel for the Commission emphasized to us that section 12.1 could be applied independently of the holding of a particular competition, since it allows a review of the qualifications established for "any ... class of positions". Even so, it still remains that in regard to a particular "position", it is inconceivable that the power of review would be exercised during the competition to the detriment of candidates who have already entered or those who were excluded or failed to apply owing to some qualification that the Commission now wished to review. Once it changes the ground rules along the way, the Commission should very definitely recommence the selection process or adjust it accordingly.
[22] It is important to distinguish firstly between an investigation and an appeal and secondly between jurisdiction and remedy.
[23] Given that the merit principle is the overarching value expressed in the Act, s. 12.1 must be interpreted in a manner which adheres to that principle, absent clear language to the contrary.
[24] The Respondent says that in the interests of finality of the selection process, the PSC has no jurisdiction to review qualification requirements during or after that process.
[25] While finality is an important consideration, acknowledging the PSC's jurisdiction to review qualifications does no violence to the concept of finality. Issues with respect to remedy is the appropriate place to focus on the principle of finality. An investigation per se has no effect on past, on-going or future selections; it is only when the PSC fashions a remedy that these processes may be affected.
[26] Against this background, it is noteworthy that s. 12.1 contains no explicit time restrictions. This is in stark contrast to s. 21 (the appeal provision) which refers to time limits prescribed by regulation.
[27] There is no reason to impose by implication any such time limit. To the extent that PSC concludes at the end of its investigation under s. 12.1 that a qualification is unsustainable, it may order corrective action pursuant to s. 7.5, which reads:
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7.5 Subject to section 34.5, the Commission may, on the basis of any investigation, report or audit under this Act, take, or order a deputy head to take, such corrective action as the Commission considers appropriate.
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7.5 Sous réserve de l'article 34.5, la Commission peut, selon les résultats des enquêtes, rapports ou vérifications effectués sous le régime de la présente loi, prendre ou ordonner à un administrateur général de prendre les mesures de redressement qu'elle juge indiquées.
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[28] For purposes of considering the scope of s. 12.1, one is dealing with jurisdiction not remedy and with an investigation and not an appeal. For the purposes of this judicial review, the issue is solely one of jurisdiction.
[29] Section 12.1 contains no express or implied time limitation. The PSC has the jurisdiction to review qualifications established by deputy heads without being limited to pre- or post-selection time frames or indeed it is not restricted to doing so only in the context of a specific competition.
[30] As a consequence, a request for an investigation of a qualification requirement can be made at any time. Whether the PSC could, as a result of the investigation, attempt to overturn previous selections is not the issue before this Court.
[31] The Applicant has not requested and indeed argued that the Court is not being asked to consider whether any such review could affect the particular selection process in which the Applicant was unsuccessful.
[32] What corrective action PSC may take after its investigation is a matter for another day. Suffice it to say that PSC has the jurisdiction under s. 12.1 of the Act and must investigate the matter of qualifications requested by the Applicant.
ORDER
[33] IT IS HEREBY ORDERED that:
1. The application for judicial review is allowed.
2. The decision of Joan Stewart dated March 17, 2003 is hereby quashed.
3. The matter of the Applicant's Request for Investigation dated December 19, 2002 is sent back to the Public Service Commission to be investigated by a different investigator.
4. Costs are awarded in favour of the Applicant.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
February 18, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-653-03
STYLE OF CAUSE: DOUG SHERB
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, February 16, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Wednesday, February 18, 2004
APPEARANCES:
Andrew Raven
FOR APPLICANT
J. Sanderson Graham
FOR RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne
Ottawa, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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