T-1538-96
OTTAWA, ONTARIO, Wednesday, January 29, 1997
PRESENT: The Honourable Mr. Justice Allan Lutfy
BETWEEN:
PIERRE
BENGE,
Applicant,
AND:
PUBLIC
SERVICE COMMISSION
APPEAL
BOARD,
Respondent.
O
R D E R
WHEREAS the applicant has filed an
application for judicial review seeking:
(1)a declaration that the applicant
has the experience required for the position of Senior Intelligence Analyst,
AS-04, with the Department of National Revenue, Ottawa, Ontario, Customs Border
Services Directorate, Intelligence Services Division, which was to be filled
pursuant to closed competition 95-NAR-CC-HQ-CBS-4003, that is, experience in
intelligence analysis;
(2)a declaration that the decision of
the Public Service Appeal Board is hypothetical, since it does not specify the
qualification that the applicant failed to demonstrate;
(3)an order reversing the decision of
the Public Service Appeal Board and a declaration recognizing the merits of the
applicant's candidacy for the position of Senior Intelligence Analyst.
CONSIDERING the submissions made by the
parties at the hearing held at Ottawa, Ontario, on January 14, 1997;
CONSIDERING that there are no grounds,
within the meaning of section 18.1 of the Federal Court Act, on which
the Court could intervene.
THE COURT ORDERS:
The application for judicial review is
dismissed.
Allan
Lutfy
J.
Certified true translation
C. Delon, LL.L.
T-1538-96
BETWEEN:
PIERRE
BENGE,
Applicant,
AND:
PUBLIC
SERVICE COMMISSION
APPEAL
BOARD,
Respondent.
REASONS
FOR ORDER
LUTFY J.
The applicant has filed an application
for judicial review under section 18.1 of the Federal Court Act, R.S.C.
1985, c. F-7, of a decision of the Public Service Commission Appeal Board (the
"Appeal Board") dismissing his appeal under section 21 of the Public
Service Employment Act, R.S.C. 1985, c. P-33, of the proposed appointments
resulting from a competition for a Senior Intelligence Analyst position with
the Department of National Revenue (the "Department").
The preliminary selection committee
ruled out the applicant's candidacy in this competition since he did not meet
either of the experience requirements. Under the heading
"Experience", the statement of qualifications for the position he was
seeking provided as follows:
Experience in intelligence analysis
OR
Experience in collecting an analyzing information to determine its
implications in an enforcement environment and to predict future trends in
criminal activities.
...
On March
7, 1996, the Appeal Board concluded, after reading the applicant's application
and curriculum vitae, that he had not demonstrated that he met either of the
experience requirements. Accordingly, the Appeal Board was unable to intervene
and dismissed the appeal.
The
applicant contends that in order to be able to apply under this competition he
had to meet only one of the experience requirements. He then asserted that he
had experience in analyzing intelligence: he contended that his experience with
the Unemployment Insurance Commission from May 1970 to September 1972 as an
insurance officer fulfilled this requirement. Since 1972, the applicant has
been working primarily as an urban planner or land use planning consultant.
The
applicant stated that in order to perform the work of an insurance officer he
had to administer and apply the Unemployment Insurance Act and interpret
the regulations thereunder. In addition, he interviewed claimants, employers
and unions. He also did research into eligibility criteria or rejecting
employees and employers from unemployment insurance programs. He had to assess
the information received in relation to the Unemployment Insurance Act.
Having regard to the documents in the record and the applicant's presentation
at the hearing before this Court, it is plain that in his mind that work
provided him with experience in analyzing intelligence.
The
Department was seeking a candidate with the necessary experience to fill the
position of Senior Intelligence Analyst. This position is very specific and
therefore requires special qualifications. The duties of this position do not
consist solely of examining data supplied by the public or by the persons
involved in a particular case, as the applicant had done when he held the
position of insurance officer. On the contrary, the duties of a Senior
Intelligence Analyst require that intelligence that is often obtained by means
other than the conventional sources of information be obtained, assembled and analyzed.
In addition, the person who holds this position is required to do a
comprehensive analysis of the intelligence obtained. Accordingly, in the words
used in advertising the competition, this person:
... creates intelligence assessments to assist Senior Management in the
planning and formulation of policy at the national and international levels;
identifies the intelligence needs of departmental management and enforcement
staff; develops operational and strategic intelligence assessments to support enforcement
programs nationally and regionally; ...
For these reasons,
a candidate was required to meet one of the experience requirements stated.
The preliminary selection committee therefore ruled out the applicant's
application since he did not meet either of these requirements.
There is
nothing in the record on which it could be found that the Department or the
Appeal Board required that applicants meet both of the experience requirements
set out supra. The applicant based his application for the position
solely on his experience in analyzing intelligence, in accordance with the
requirements of the competition. Moreover, after the preliminary selection
committee examined his application, it concluded that he did not meet either of
the experience requirements: he had experience neither in intelligence
analysis, notwithstanding his employment with the Unemployment Insurance
Commission, nor in the second aspect of the experience required, for which the
applicant in fact submitted no information.
Since the
Appeal Board committed no error in fact or in law, within the meaning of
section 18.1 of the Federal Court Act, based on which the Court could
intervene in this case, the application for judicial review is therefore
dismissed.
Allan
Lutfy
J.
Ottawa, Ontario
January 29, 1997
Certified true
translation
C. Delon, LL.L.
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1538-96
STYLE OF CAUSE: Pierre
Benge
and
Public
Service Commission Appeal Board
PLACE OF HEARING: Ottawa,
Ontario
DATE OF HEARING: January
14, 1997
REASONS FOR ORDER
OF THE HONOURABLE MR. JUSTICE LUTFY
DATED JANUARY 29,
1997
APPEARANCES:
Pierre Benge THE
APPLICANT,
REPRESENTING
HIMSELF
Anick Pelletier FOR
THE RESPONDENT
SOLICITORS OF
RECORD:
George Thomson FOR
THE RESPONDENT
Deputy Attorney
General
of Canada
Ottawa, Ontario
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