Lo v. Public Service Commission Appeal Board, docket T-32-96

                                 File: T-32-96

IN THE MATTER of an application for judicial review and set aside, and, for declaratory relief pursuant to Sections 18.(1) and 18.1(1) of the Federal Court Act, R.S.C. 1985, F-7, as amended;

AND IN THE MATTER OF a decision of an Appeal Board, established pursuant to Section 5(c) of the Public Service Employment Act, rendered by John A. Mooney dated the 21st day of November, 1995, with respect to the appeal of Marilla Lo under Section 21 of the Public Service Employment Act, R.S., 1985, P-32, as amended.

     MARILLA LO

                                     Applicant

     - and -

     THE PUBLIC SERVICE COMMISSION APPEAL BOARD, and

     THE PUBLIC SERVICE COMMISSION OF CANADA, and

     THE TREASURY BOARD SECRETARIAT OF CANADA

                                     Respondents

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision of a Public Service Commission Appeal Board (the "Board") wherein the Board allowed the Applicant's appeal pursuant to Section 21 of the Public Service Employment Act¹ against the appointment of Mr. J. Wilson and determined that "no further action will be taken..." with respect to the appointments of Ms. J. Steadman and Ms. Tam. The Board's decision is dated the 21st of November, 1995.

     The facts underlying this application for judicial review are set out in the following terms in Reasons for Order given by Mr. Justice Pinard of this Court arising out of an earlier application for judicial review brought by this Applicant in respect of the same competition.

The following facts are not in dispute. On July 26, 1993 the applicant applied for a closed FI-4 competition 93-TBD-CC-007, position of Senior Analyst (F1-04), Treasury Board Secretariat, Ottawa,Ontario. The language requirement for the position was "bilingual non-imperative, BBB/BBB". The applicant was notified (by the Senior Staffing Officer of the Treasury Board Secretariat) that she had been qualified in every aspect except the linguistic requirement and that Mr. Jeff Wilson and Ms. Joanne Steadman ranked first and second on the list of successful candidates. On October 1, 1993, the applicant appealed the selection process.

On November 4, as part of the discovery process, the applicant received copies of the successful candidates' résumés. The applicant found out from the University of Carleton that Ms. Steadman was not awarded a B.A. in Economics/Finance, the degree and specialty stated in her résumé, and in her handwritten application for the competition. The applicant was unable to obtain confirmation of Mr. Wilson's B.A.-Economics and CMA as stated in his résumé.

The applicant requested confirmation of the candidates' true professional qualifications. In response, the Treasury Board representative, on November 17, 1993, requested that Public Service Commission Appeal Board rule on the applicant's right to appeal, arguing that she was not an unsuccessful candidate as she had been offered a unilingual F1-4 position. On December 3, 1993, the Public Service Commission Appeal Board upheld the applicant's right to appeal.

During December 1993, the Treasury Board representative disclosed that Ms. Steadman did not have a B.A. Economics/Finance but instead that she had a B.A. Economics/Political Science. No disclosure concerning Mr. Wilson was forthcoming. On December 31, 1993, the last working day before the appeal hearing on January 4, 1994, it was conceded that Mr. Wilson did not have CMA accreditation and that the date he had received his B.A.-Economics could not be confirmed.2

     Mr. Justice Pinard allowed the application for judicial review that was before him, set aside the earlier Public Service Commission Appeal Board decision and referred the matter back to the Public Service Commission for the establishment of a new Appeal Board and for the rehearing and redetermination of the Applicant's appeal. Mr. Justice Pinard concluded:

...in allowing an improper use of the selection standard to qualify candidates to a competition, when those candidates did not possess the educational qualifications stated on the competition poster and when the reasons given in support of the impugned decision do not otherwise address such qualifications, the Appeal Board made an error which goes to jurisdiction, which is sufficient to void its decision.

     Between the time of the decision of the Public Service Appeal Board that was before Mr. Justice Pinard and the hearing before the Board resulting in the decision that is before me, Ms Steadman was transferred to another position in the Public Service of Canada in July of 1995 and, thereafter, retired from the Public Service.

     In reaching its decision, the Board recited the fact that its role was "...to determine whether there has been a selection according to merit pursuant to section 10 of the Public Service Employment Act." It further stated that: "The focus is not the protection of individual rights, but on ensuring that the merit principle is being adhered to." For these principles, which were not in dispute before me, the Board cited Charest v. Attorney General of Canada.³

     As to the appeal against the appointment of Ms.Steadman, the Board wrote:

I now turn to the appeal lodged against the appointment of Ms.Steadman. I have concluded that the allegations directed against her appointment are moot. It is common ground that she was appointed to a Senior Analyst position but that she was transferred to another position in July 1995 and has since retired from the Public Service. When an appeal is lodged under Section 21 of the Public Service Employment Act, it is directed against an appointment. In this case, there is no longer any appointment with respect to Ms. Steadman, since her appointment to the position which is the object of this appeal has ceased. The appeal has therefore become moot. In other words, had the appeal succeeded, there would be no appointment for the Public Service Commission to revoke. The Federal Court of Appeal held in Noël v. Ministre de l'emploi et de l'immigration4 that an Appeal Board cannot dissociate its inquiry from the decision it must render and that if the appointment has ceased, the appeal looses its object and the Appeal Board can end its inquiry. I will therefore take no further action in that matter.

     With respect to the appointment of Mr. Wilson, the Board noted that Mr. Justice Pinard had found the process leading to his appointment to be flawed and that therefore his appointment contravened the merit principle. In this regard, the Board concluded that Mr. Justice Pinard's conclusion was clear and binding on it. Thus, it allowed the appeal against the appointment of Mr. Wilson on that ground. It went on, however, to review at some length the Applicant's allegations that the Selection Board charged with the conduct of the closed competition was remiss in finding the Applicant unqualified in the competition. It concluded that, in this respect, the Selection Board made no error and that the Applicant simply did not meet the language profile established for the positions that were the subject of the competition, that profile being BBB/BBB non-imperative, and that the Applicant was not entitled to language training at public expense that would be sufficient to enable her to meet that language profile.

     No issue was taken before me with regard the Board's decision with respect to Ms. Tam.

     The following issues were identified by counsel for the Applicant:

1.      Whether the Board erred by taking into consideration evidence that was not properly before it;

2.      Whether the Board erred in determining that the allegations against the appointment of Ms. Steadman were moot; and

3.      Whether the Board erred in determining that the Applicant was unqualified for the positions at stake in the competition by reason of language training issues.

Counsel were in agreement before me that each of the issues constituted a question of law and that therefore the standard of review in connection with the issues was that of "correctness".⁵

     On the first issue, early on in its reasons, the Tribunal wrote:

On October 15, 1993, she [the Applicant] was offered a Senior Analyst (FI-04) position, the language profile required being English essential. Ms. Lo did not accept this offer of appointment.

Evidence to support this statement was not before the Tribunal other than in the reasons of Mr. Justice Pinard where he wrote:

...she [the Applicant] had been offered a unilingual FI-4 position.

Clearly, the Board knew more about the offer made to the Applicant than was disclosed in Mr. Justice Pinard's reasons.

     Counsel referred me to Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al⁶ where Mr. Justice Dickson, as he then was, wrote at page 389:

A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: [citations omitted]

Counsel acknowledged that there was not a privative or preclusive clause applicable in this matter. Nonetheless, he argued that the Board, on the basis of its statement quoted above, based its decision on extraneous matters and breached the provisions of natural justice.

     Counsel also referring me to Attorney General of Canada v. Pompa⁷ where Mr. Justice Décary wrote:

If there is one well-settled rule of law it is that a judge cannot take cognizance of facts coming directly to his attention in the course of another proceeding to decide on the fate of a proceeding in which those facts were not entered in evidence.

Mr. Justice Décary quoted from Mr. Justice Dickson, as he then was, in Kane v. Board of Governors of the University of British Columbia⁸ where he wrote:

We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.

Mr. Justice Décary concluded on this point:

Further, the nature, length and vehemence of the statements made, as well as the completely unfair nature of the accusations levelled, whether obiter or not, could only taint the entire proceeding and render both the judge's approach and the conclusion he arrived at suspect to even the most casual observer.

     I am satisfied that the impugned statement of the Board in this matter forms no part of the considerations leading to the Board's decision. Further, against the test cited in Pompa and quoted from the Kane decision, no reasonable person reading the Board's decision as a whole, would conclude that there was a possibility or likelihood of prejudice against the Applicant. By contrast with the facts in the Pompa matter, "...the nature, length and vehemence..." of the statement made in this matter is of no significance when it is taken in context. In the result, I reject the first argument presented on behalf of the Applicant.

     I turn to the second issue identified by counsel for the Applicant, that is, whether the Board erred in determining that the allegations against the appointment of Ms. Steadman were moot. The relevant portion of the Board's reasons on this point is quoted earlier in these reasons. For ease of reference, I repeat two sentences from those reasons:

The appeal has therefore become moot. In other words, had the appeal [against the appointment of Ms. Steadman] succeeded, there would be no appointment for the Public Service Commission to revoke.

In support of this reasoning, the Board relied on the Federal Court of Appeal decision in Noël v. Ministre de l'emploi et de l'immigration.⁹ While it is arguable that the Noël decision might be distinguishable on the facts, there is a more fundamental reason why the Board erred in law in relying on it.

     At the time of the Noël decision, subsection 21(2) of the Public Service Employment Act, as quoted by the Court in its reasons for decision, read as follows:

(2)      the Commission, on being notified of the decision of the board on an enquiry into an appointment conducted pursuant to subsection (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.

These were the only options available to the Public Service Commission on being notified of the decision of a board. Thus, the Board's determination that an appeal against the appointment of Ms. Steadman had become moot because "...there would be no appointment for the Public Service Commission to revoke" would appear to be emminently logical. However, what the Board appears to have failed to recognize is that, between the time of the decision in Noël and the time of the Board's decision, section 21 of the Public Service Employment Act was amended and the amendment was proclaimed in force.¹⁰ In the result, subsection 21(2) was made subject to a new subsection 21(3) which reads as follows:

(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.

Thus, where there is a defect in the process for the selection of a person, such as Ms. Steadman, for appointment under the Act, the Public Service Commission is no longer limited to taking one of the two corrective measures described in subsection 21(2) but rather may take any measure or measures that it considers necessary to remedy the defect. Thus, the fact that Ms. Steadman had been transferred and subsequently resigned did not render the Public Service Commission powerless to take corrective action which, in the circumstances, was only limited by its imagination, if the Board found there to be a defect in the process for the selection of Ms. Steadman.

     Mr. Justice Pinard, in his earlier decision in this matter, found there to be a defect in the process for the selection of both Ms. Steadman and Mr. Wilson. He wrote:

Therefore, in allowing an improper use of the selection standard to qualify candidates to a competition, when these candidates did not possess the educational qualifications stated on the competition poster and when the reasons given in support of the impugned decision do not otherwise address such qualifications, the Appeal Board made an error which goes to jurisdiction, which is sufficient to void its decision.

Here, the Board determined Justice Pinard's decision to be binding on it. Thus, having accepted the conclusion that a defect in the selection process existed in the case of Mr. Wilson, if it had examined the appointment process with respect to Ms. Steadman, I conclude that it would have been obliged to find a defect in the selection process for Ms. Steadman. In the result, it would have been open to the Public Service Commission to utilize subsection 21(3) as authority for such measures as it considered necessary to remedy the defect, notwithstanding the fact that Ms. Steadman had been transferred and subsequently resigned.

     For the foregoing reasons, I determine that the Board erred in law in concluding that the appeal against the appointment of Ms. Steadman was moot.

     I turn then, very briefly, to the third issue, that is, whether the Board erred in determining that the Applicant was unqualified for the positions at stake in the competition by reason of language training issues. Following a somewhat lengthy and closely reasoned analysis with respect to this issue, the Board determined that there was no merit to the Applicant's allegation that the Selection Board erred in finding her unqualified for the position she sought by reason of the language profile established for the position and her own language profile and remaining entitlements to language training at public expense. After a careful review of the decision of the Board, and after consideration of the arguments presented by counsel for the Applicant on this issue, I am satisfied that the Board made no reviewable error on this aspect of the appeal before it.

     In the result, by reason of the Board's error of law in determining that the Applicant's appeal in respect of the appointment of Ms. Steadman was moot, this application for judicial review will be allowed and the matter will be referred back for rehearing, if necessary, and redetermination of the Applicant's appeal solely on the issue of a defect in the process for the selection for appointment of Ms. Steadman in the closed competition in question.

             ___________________________________

                     Judge

Ottawa, Ontario

February 21, 1997

__________________

     ¹      R.S.C. 1985, c. P-33 (as amended)

     ²      Court File: T-317-94, April 28, 1995 (unreported)(F.C.T.D.)

     ³      [1973] F.C. 1217 at 1221 (F.C.A.)

     ⁴      (1991), 136 N.R. 398 (F.C.A.)

     ⁵      See Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554.

     ⁶      [1975] 1 S.C.R. 382">[1975] 1 S.C.R. 382

     ⁷      Court File: A-309-93, September 16, 1994 (F.C.A.)(unreported)

     ⁸      [1980] 1 S.C.R. 1105">[1980] 1 S.C.R. 1105 at 1116

     ⁹      Cited above in footnote 4.

     ¹⁰      S.C. 1992, c. 54, s. 16, proclaimed in force June 1, 1993. Section 21 of the Public Service Employment Act has been further amended by S.C. 1996, c. 18, s.15 but apparently not in a manner relevant to this matter.