Nenn v. The Queen, [1981] 1 SCR 631

Supreme Court of Canada

Nenn v. The Queen, [1981] 1 S.C.R. 631

Date: 1981-05-11

Klaus D. Nenn Appellant;

and

Her Majesty The Queen Respondent.

1980: November 6; 1981: May 11.

Present: Martland, Ritchie, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law—Jurisdiction of Federal Court of Appeal—Appointment by Public Service Commission—Whether opportunity for advancement prejudicially affected—“In the opinion of the Commission”—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28—Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21.

The appellant, an air traffic controller, sought to have the Federal Court of Appeal review and set aside a decision of the Public Service Commission made pursuant to s. 21 of the Public Service Employment Act. The appellant had submitted his application for a transfer to the Villeneuve Control Tower located near Edmonton. A Selection Committee did not select him, hence his appeal to the Commission. The Commission held that the appellant’s opportunity for advancement in the Public Service had not been prejudicially affected by the appointment of another candidate.

The Federal Court of Appeal dismissed the application for lack of jurisdiction.

Held: The appeal should be dismissed.

The Federal Court of Appeal did not have jurisdiction, under s. 28 of the Federal Court Act, to hear the present application, for, applying the criteria determined in The Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, (1) the use of the word “opinion” in s. 21(b) of the Public Service Employment Act indicates that the finding of the Commission which the appellant sought to attack was not a “decision or order”; (2) in any event the opinion of the Commission is of an administrative nature not required by law to be made on a judicial or quasi-judicial nature: if Parliament had intended that the prejudicial effect of the appointment upon the opportunity for advancement of the unsuccessful candidate was a matter to be considered judicially, it would have eliminated the words “in the opinion of the Commission” in s. 21(b) and would not have made that opinion a part of the normal administrative duties of the Commission; (3) the opinion was not made in the course of “proceedings”, for the

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proceedings contemplated by s. 21 are the appeal proceedings before the board and the formulation of its opinion under s. 21(b) by the Commission is not a part of those proceedings. Even if the Federal Court of Appeal had had jurisdiction, it could not properly have set aside the opinion of the Commission: there was no failure to observe the principles of natural justice and there is no suggestion of any error of law or of erroneous finding of fact.

The Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1], dismissing, for lack of jurisdiction, an application to review and set aside a decision of the Public Service Commission. Appeal dismissed.

John P. Nelligan, Q.C., for the appellant.

W.L. Nisbet, Q.C., for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—The appellant has appealed from a judgment of the Federal Court of Appeal which dismissed, for lack of jurisdiction, an application made to that Court pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, seeking to have the Court review and set aside a decision of the Public Service Commission made pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32.

The appellant is an air traffic controller who at all material times was employed within the Ministry of Transport as a Visual Flight Rules (hereinafter referred to as VFR) Controller. Each air traffic controller within the Ministry of Transport occupies a position classified as a certain level of the A1 Group. For VFR Controllers, this position classification is tied to the rating of their Control Tower’s complexity. The higher and more complex the traffic volume or more complex the airport, the higher the Grade number of the Tower involved; the higher the number of a Controller’s position classification, the higher his salary range is.

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In September 1976, the appellant submitted his application for a transfer to the Villeneuve Control Tower located near Edmonton (Alberta), which was to be opened in October 1976. The Tower was to open as a Grade 1 Tower and, therefore, the classification of the position applied for was A1-01. At the time he made his application, the appellant was classified as A1‑02. A transfer to Villeneuve would, therefore, have resulted in a demotion for him.

Early in 1977, a Selection Committee was convened to select an incumbent for the position of Duty Controller, Villeneuve Control Tower (A1-01). The Committee determined that Mr. P.J. Weston was the best qualified applicant for that position. Mr. Weston accepted the A1-01 appointment at Villeneuve although prior to the transfer he had held an Al-02 position. Therefore, he was accepting a demotion.

On February 28, 1977, the appellant appealed to the Appeals Branch of the Public Service Commission (“the Commission”) against the appointment of Mr. Weston to the position of Duty Controller at the Villeneuve Control Tower. The provisions of the Public Service Employment Act which govern appeals of this nature are contained in s. 21, which reads as follows:

21. 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 within the Public Service

(a) by closed competition, every unsuccessful candidate, or

(b) without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudically affected,

may, within such period as the Commission prescribes, 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, are given an opportunity of being heard, and upon being notified of the board’s decision on the inquiry the Commission shall,

(c) if the appointment has been made, confirm or revoke the appointment, or

(d) if the appointment has not been made, make or not make the appointment,

accordingly as the decision of the board requires.

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In order to determine whether the appellant was entitled to appeal against this appointment, the Commission considered whether the appellant’s opportunity for advancement in the Public Service had been prejudicially affected by the appointment of Mr. Weston.

Representations were made on behalf of the appellant to the Commission that the upgrading of Mr. Weston’s position beyond that of the appellant’s was inevitable as a result of the volume of recreational and training flying at the Edmonton Municipal Airport which was to be transferred to the airport at Villeneuve. Department of Transport management denied that this was true.

The Commission pointed out that the opinion sought from the Commission under s. 21(b) related to Mr. Weston’s appointment to the airport at Villeneuve and not to any subsequent reclassification of that position. Mr. Weston’s appointment was for the purpose of “checking out”. This meant that he was considered to be suitable to train at the Villeneuve Tower to determine his suitability for appointment. The conclusion reached by the Commission was as follows:

Since

—Mr. Weston was found to be suitable to train at Villeneuve for the purpose of “checking out” at that tower,

—Mr. Weston’s appointment at Villeneuve was to a position for which the maximum rate of pay did not exceed the maximum rate of pay for the position occupied by him immediately before the appointment,

—Mr. Weston’s appointment was from within the normal minimum area of competition (Regional) for appointment to an A1-01 position at Villeneuve,

it is the Commission’s opinion that Mr. Nenn’s opportunity for advancement has not been prejudicially affected by the appointment of Mr. Weston.

Subsection (1)

of s. 28 of the Federal Court Act, upon which the appellant founded his application, provides as follows:

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, com-

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mission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The Federal Court of Appeal decided that the application should be dismissed. It was held that the “opinion” to be expressed by the Commission under s. 21(b) involved the making of an administrative decision and was not required by law to be made on a judicial or quasi‑judicial basis. Therefore, the Federal Court of Appeal did not have jurisdiction under s. 28 of the Federal Court Act to grant the application. Chief Justice Jackett, delivering the unanimous decision of the Federal Court of Appeal, said [at p. 781]:

In the case of the two classes of decision under section 21 referred to, Parliament has indicated that a decision as to the validity of a grievance is to be made on a quasi‑judicial basis but has given no such indication with regard to the Commission’s opinion as to whether a person’s opportunity for advancement has been prejudicially affected by an appointment decision. I have, therefore, concluded that the latter class of decision is a decision of an administrative nature not required by law to be made on a judicial or quasi-judicial basis.

This Court considered the jurisdiction of the Federal Court of Appeal, as defined in s. 28, in The Minister of National Revenue v. Coopers and Lybrand[2]. Dickson J., who delivered the reasons of the Court, said at pp. 499-500:

The convoluted language of s. 28 of the Federal Court Act has presented many difficulties, as the cases attest, but it would seem clear that jurisdiction of the Federal Court of Appeal under that section depends upon an affirmative answer to each of four questions:

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(1) Is that which is under attack a “decision or order” in the relevant sense?

(2) If so, does it fit outside the excluded class, i.e. is it “other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”?

(3) Was the decision or order made in the course of “proceedings”?

(4) Was the person or body whose decision or order is challenged a “federal board, commission or other tribunal” as broadly defined in s. 2 of the Federal Court Act?

Referring to question (1), it is my opinion that the use of the word “opinion” in s. 21(b) of the Public Service Employment Act indicates that what the appellant seeks to attack in this case is not a “decision or order” in the relevant sense.

With respect to question (2), even if the Opinion of the Commission is considered to be a decision or order, it is of an administrative nature not required by law to be made on a judicial or quasi-judicial basis.

Parliament when it enacted s. 21 made provision for a special kind of appeal which would enable unsuccessful candidates for appointment to a position in the Public Service to appeal against the appointment of the successful candidate whose appointment was made from within the Public Service. Under para. (a), if the appointment is made following a “closed competition”, i.e. a competition open only to members of the Public Service, every unsuccessful candidate for the appointment has a right to appeal. If, however, the appointment is made without competition, under para. (b), an unsuccessful candidate can only appeal if the Commission is of the opinion that his opportunity for advancement in the Public Service has been prejudicially affected as a result of the appointment.

Appeals under s. 21 are made to a board established by the Commission to conduct an inquiry. If Parliament had intended that the prejudicial effect of the appointment upon the opportunity for advancement of the unsuccessful candidate was a

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matter to be considered judicially, it would have eliminated from para. (b) the words “in the opinion of the Commission”. The matter would then have had to be determined by the board of inquiry in connection with the appeal. Parliament did not follow that course. It chose to limit the right of appeal of unsuccessful candidates where an appointment is made without competition to those candidates whose opportunity for advancement had “in the opinion of the Commission” been prejudicially affected.

The role of the Commission in respect of appointments to the Public Service shows that the opinion at issue is a part of its normal administrative duties. Section 8 of the Public Service Employment Act provides that the Commission has the “exclusive right and authority to make appointments to or from within the Public Service”. Section 10 provides that appointments made to or from within the Public Service shall be on the basis of merit. Section 11 of the Act provides that appointments shall be made from within the Public Service, “except where, in the opinion of the Commission, it is not in the best interests of the Public Service to do so”. Section 12 provides that the Commission may, in determining the basis of assessment of merit, prescribe selection standards as to education, knowledge, experience, language, etc., or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed. (Emphasis added.)

Because the Commission makes the appointments to and from within the Public Service, it possesses the expertise to formulate an opinion as to whether the opportunity for advancement in the Public Service of an unsuccessful candidate has been prejudicially affected by the making of the appointment. Furthermore, the two other sections referred to above where the Commission is required to reach an “opinion” are clearly matters

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not reviewable by s. 28 proceedings.

Paragraph (b) of s. 21 requires the Commission to perform the administrative task of screening possible appellants under that paragraph by forming its own opinion as to whether their opportunity for advancement has been prejudicially affected. If the submission of the appellant is correct, appeals falling within para. (b) would involve a two stage judicial procedure performed by two separate bodies. The Commission would have to make a judicial determination as to whether the unsuccessful candidate was qualified to appeal which would be subject to review by the Federal Court of Appeal under s. 28. If the appeal proceeded, the board would then decide it, again subject to review by the Federal Court of Appeal. I agree with the view of the Federal Court of Appeal that this was not Parliament’s intention.

Referring to question (3) stated by Dickson J., I do not regard the formulation of its opinion by the Commission under s. 21(b) as being a decision or order made in the course of “proceedings”. The proceedings contemplated by s. 21 are the appeal proceedings before the board. The formulation of its opinion under s. 21(b) by the Commission is not a part of those proceedings, but is a preliminary step required in s. 21(b) cases prior to the appeal proceedings ever commencing.

In my opinion the first three of the four questions posed by Dickson J. should be answered in the negative and accordingly the Federal Court of Appeal was correct in holding that it did not have jurisdiction under s. 28 in the circumstances of this case.

Even if the Federal Court of Appeal had determined that it had jurisdiction to deal with the appellant’s application, in my opinion it could not properly have set aside the opinion of the Commission. The grounds upon which that can be done are limited in s. 28 to those matters set forth in paras. (a), (b) and (c):

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(a) Natural Justice

There was no failure on the part of the Commission to observe the principles of natural justice. The Commission heard and considered the representations made on behalf of the appellant. The Commission did not act beyond or refuse to exercise its jurisdiction.

(b) Error of Law

There is no suggestion of any error of law on the part of the Commission in formulating its opinion.

(c) Erroneous Finding of Fact

There is no suggestion that the opinion of the Commission was formulated on any erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Nelligan and Power, Ottawa.

Solicitor for the respondent: R. Tassé, Ottawa.