Date: 20000128
Docket: T-547-99
BETWEEN:
YVON GIROUX,
Plaintiff,
- and -
THE ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of an interlocutory decision of the Appeal Board, Recourse Branch, Public Service Commission of Canada ("the Appeal Board") on March 9, 1999 denying the plaintiff access to eight candidate files.
FACTS
[2] On January 21, 1998 National Revenue published a notice of a closed competition to fill the positions of managers at the tax services offices in Montréal, Laval and Montérégie Rive-Sud (Longueuil). The candidates had to write examinations to determine their knowledge. Those who passed the examination were summoned to an interview to assess their abilities and personal qualifications. The sixteen candidates who obtained the best grades were classified in order. Three lists were then prepared, one for each office. A person might well be on all three lists at the same time if he or she had applied for positions in the three offices.
[3] The plaintiff first applied for positions at Longueuil and Montréal.
[4] He subsequently informed the Commission by letter of his desire to withdraw his candidacy for employment in Longueuil.
[5] He brought an appeal against the appointments pursuant to s. 21 of the Public Service Employment Act.
[6] The plaintiff and three other candidates were represented by the Professional Institute of the Public Service ("the Institute"). The representative sought the sixteen files of the qualified candidates. His request was denied on February 2, 1999.
[7] At the hearing of March 2, 1999 the plaintiff asked the Appeal Board to reconsider its decision of February 2, 1999. At that stage he was no longer represented by the Institute, having notified the Commission to this effect on February 26, 1999.
APPEAL BOARD"S DECISION
[8] The president of the Appeal Board listened to the submissions of both parties and finally accepted the ministerial representative"s proposition of offering access to the documents depending on the place where people had made their applications. Candidates who had applied for employment at the three places listed in the notice would be entitled to obtain copies of the files for the candidates at all three places. As Mr. Giroux had applied for employment in Longueuil, the president decided that he was only entitled to the files relating to Longueuil. As the plaintiff already had eight files in his possession, six of which were for Longueuil, he considered that he was not entitled to receive any other files.
PLAINTIFF"S ARGUMENTS
[9] The plaintiff submitted that a single competition was held for the purpose of filling positions in three different offices, namely Montréal, Laval and Longueuil.
[10] As there was only one competition, the plaintiff maintained that in exercising his right of appeal that right of appeal applied to appointments in Montréal and Laval as well as Longueuil.
[11] First, the plaintiff argued that the rules of natural justice and procedural fairness had not been observed, since at no time before March 2, 1999 had he been told that the appeal he filed with the Commission applied only to Longueuil appointments and not to those at Montréal and Laval.
[12] The plaintiff submitted that the fact that he was given two files, namely the files for the two people who came first on the Montréal and Laval lists, and especially the fact that the only argument made for not giving him the eight missing candidates" files was simply that providing eight out of sixteen files met the provisions of s. 24 of the Public Service Employment Regulations, shows that in the Commission"s mind there had been only one competition.
[13] The plaintiff maintained that he was representing himself and was taken by surprise at the hearing of March 2, 1999, and did not have a reasonable opportunity of defending himself and presenting his viewpoint.
[14] The plaintiff further maintained that the fact that three lists were issued after the competition is not relevant to determining whether there were one or three competitions.
[15] The plaintiff maintained that all candidates who applied for a position available in any of the three offices had to take the same tests and were compared with each other, regardless of the workplace selected.
[16] The plaintiff maintained that each candidate was in competition with all the others to show that he or she was the best qualified to hold the position, regardless of the workplace selected.
[17] The plaintiff maintained that as the right of appeal is designed to validate a selection process, it is understandable that the plaintiff would have a right of appeal against all the appointments proposed as a result of this selection process, not only against appointments for the location he had selected, in this case Longueuil.
DEFENDANT"S ARGUMENTS
[18] The defendant submitted that it appeared clearly from the evidence in the record that these were three separate competitions held to fill AU-04 positions in the Montréal, Laval and Longueuil offices and that the plaintiff had finally only applied for one of the three competitions, that for the Longueuil office.
[19] The defendant suggested that if this was in fact a single competition the results would have been combined on a single eligibility list reflecting, in accordance with the merit principle, the classification order of each candidate regardless of the location where he or she wished to work.
[20] The defendant suggested that as the plaintiff had not submitted a candidacy in competitions 97-NAR-QC-LAV-CC-18(A and B), he could not be regarded as an unsuccessful candidate for the purposes of those competitions within the meaning of s. 21 of the Act and consequently could not exercise a right of appeal and so claim to be entitled to disclosure of information affecting those competitions.
POINT AT ISSUE
Was the Appeal Board"s interlocutory decision denying the plaintiff access to the documents vitiated by error?
ANALYSIS
[21] The plaintiff did not persuade the Court of the validity of his argument that the rules of natural justice and procedural fairness had not been observed. Although in several documents from the Public Service Commission it was not always clear that these were three separate competitions, the copy of the eligibility list sent to the plaintiff was quite clear in his case, indicating that the only one sent to him was that for Longueuil and that the competition number mentioned on the eligibility list was in fact 97-NAR-QC-LAV-CC-18(C); further, only six names appear on the said list, those who had qualified for the said competition. The said eligibility list was dated October 23, 1998 and clearly mentioned that the appeal period was from October 29 to November 12, 1998.
[22] The Public Service Employment Act states in s. 21(1):1
| 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 général en cause, ou leurs représentants, ont l"occasion de se faire entendre.
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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 by 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.
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[23] At no time between October 1998 and March 2, 1999 was the question of whether Mr. Giroux was entitled to appeal against appointments proposed for the Montréal and Laval positions raised: neither the Commission nor the Appeal Board had a responsibility or legal duty to inform the plaintiff Mr. Giroux that he had no right of appeal from the appointments proposed for Laval and Montréal.
[24] The fact that the appeal board"s first interlocutory decision on February 5, 1999 was based on another ground, namely that in the circumstances it was reasonable to supply the plaintiff with eight files in order to comply with the spirit and letter of s. 24 of the regulations, does not in any way mean that the plaintiff was taken by surprise.
[25] It was even the Appeal Board"s duty to raise this kind of question ex officio , just as a court may realize at a hearing that the appeal has been filed after the deadlines.
[26] A contrario, it was somewhat surprising for the Appeal Board to find that the plaintiff Mr. Giroux wished to appeal all the appointments, not only those proposed for the Longueuil office.
[27] I therefore conclude that this first argument regarding procedural fairness should be dismissed.
[28] On the second point, let us briefly review the facts.
[29] On January 21, 1998 Revenue Canada published a closed competition notice (97-NAR-QC-LAV-CC-18). To this number was appended a letter designating the various offices: Laval was identified by an A, Montréal by a B and Longueuil by a C. This notice was for the purpose of filling AU-04 positions, Large File Case Managers, for the Laval, Montréal and Longueuil Tax Services Offices.
[30] In their application the candidates had to specify and indicate the reference number of the competition in which they were participating.
[31] The plaintiff entered 97-NAR-QC-LAV-CC-18 B and C. It appeared in the record that the plaintiff had subsequently withdrawn his application for competition B.
[32] Following the examinations, the eligibility lists which were sent to the candidates, all had different references numbers depending on the workplace.
[33] In view of the evidence submitted, the Appeal Board concluded that there were in fact three competitions.
[34] The parties appeared to agree in saying that it would not have been appropriate to hold two or three interviews for the same individual if the latter was applying for different locations, and it is difficult to disagree with that.
[35] In Charest v. Attorney General of Canada,2 Pratte J.A. explained at 1221:
| The holding of a competition is one means provided by the Act to attain the objective of selection by merit. However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant"s rights, it is to prevent an appointment being made contrary to the merit principle. As, in my view, this is what the legislator had in mind in enacting section 21, it seems clear that a Board appointed under this section is not acting in an irregular manner if, having found that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates, it decides that no appointment should be made as a result of that competition. |
[36] In Attorney General of Canada v. Landriault,3 Pratte J.A. wrote at 641 and 642:
| Section 21 of the Public Service Employment Act creates a right of appeal against appointments in the Public Service when the selection of the persons to be appointed was made from the Public Service. If, as in the present case, a selection was made "by closed competition", the right to appeal is given to "every unsuccessful candidate" . . . |
| In those circumstances, it would seem wise to give the word "candidate" in section 21 its normal meaning which, in my opinion, would include any person having applied for the job. That conclusion seems to be in harmony with the decision of the Supreme Court of Canada in Bullion v. Her Majesty the Queen et al. [[1980] 2 S.C.R. 578">[1980] 2 S.C.R. 578], which, as I read it, implies that a person employed in the Public Service who has applied to participate in a closed competition and whose application has been summarily rejected because he is not within the area of the competition as defined by the Commission pursuant to paragraph 13(b) of the Act may appeal under section 21 in order to contest the legality of the determination made by the Commission pursuant to paragraph 13(b). |
[37] On the basis of Landriault,4 I have come to the conclusion that the plaintiff was not a successful candidate within the meaning of the Act, since he did not submit his candidacy for the Montréal and Laval positions.
[38] In my view, the plaintiff did not succeed in showing that the Appeal Board made a decision vitiated by errors of law or that its decision was made in a perverse or capricious manner or without regard for the material which it had before it to make a fair decision.
[39] For these reasons, the application for judicial review is dismissed.
[40] The whole without costs.
OTTAWA, ONTARIO
January 28, 2000
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: YVON GIROUX v. |
ATTORNEY GENERAL OF CANADA
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 12, 2000 |
| REASONS FOR ORDER AND ORDER BY: BLAIS J. |
APPEARANCES:
| Yvon Giroux representing himself (applicant) |
| Claude Morissette for the defendant |
SOLICITORS OF RECORD:
| Morris Rosenberg for the defendant |
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 R.S.C. 1985, c. P-33, amended by the Public Service Reform Act, S.C. 1992, c. 54, the Budget Implementation Act, S.C. 1996, c. 17 and the Employment Equity Act.
2 [1973] F.C. 1217.
3 [1983] 1 F.C. 636.
4 Supra.
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