Date: 20000404
Docket: A-55-99
CORAM: DÉCARY J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
HARPAL BUTTAR
Appellant
- and -
ATTORNEY GENERAL OF CANADA
(Health Canada) and LARRY WHITEHOUSE
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] This appeal raises a novel issue pertaining to the jurisdiction of appeal boards established pursuant to the Public Service Employment Act, R.S.C. 1985, c. P-33 as amended. An appeal board hears challenges to public service appointments made either after a competition under subsection 10(1), or without a competition under subsection 10(2). Those provisions read as follows:
| 10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
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10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
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| (2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
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(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
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[2] The question that arises in this case is whether, in an appeal of an appointment made without a competition under subsection 10(2), the appeal board has the jurisdiction to consider whether the relevant standards of competence have been applied in a consistent manner. The appeal board found in this case that it had no such jurisdiction. An application for judicial review of that decision was dismissed (1998), 161 F.T.R. 177 (F.C.T.D.).
[3] It has long been recognized that "selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged" (per Le Dain J. in Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (F.C.A.) at 115). This is the most quoted formulation of what has come to be called the "merit principle."
[4] Subsection 10(2) was enacted in 1993, (S.C. 1999, c. 54, s. 9) concurrently with a number of other amendments to the Public Service Employment Act. Jurisprudence relating to pre-1993 appointments often contains general statements made in the context of an appointment after a competition. Care must be taken in applying those cases to appointments made under subsection 10(2), because of the change in context. Even so, this Court has said that the 1993 amendments to the Public Service Employment Act did not alter the merit principle. An appointment under subsection 10(2) represents an alternative application of the merit principle, not an exception to it. In Canada (Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.), the merit principle underlying the process of selection permitted by subsection 10(2) was described as the "individual merit principle," as opposed to the "comparative merit principle" underlying appointments made after competitions held pursuant to subsection 10(1).
[5] Section 21 of the Public Service Employment Act provides for appeals against appointments. The objective of section 21 is to ensure that the principle of selection by merit is observed: Charest v. Canada (Attorney General), [1973] F.C. 1217 (F.C.A.). Although that principle was first stated in the context of an appeal to an appointment made after a competition, it is applicable to all appeals under section 21.
[6] In a section 21 appeal, the appeal board may order that the appointment of another person not be made or, if it has been made, that it be revoked. The appeal board may also order that the selection process be started over. But a successful appeal does not entitle the appellant to an appointment. That flows from the nature of a section 21 appeal, which challenges the decision to make an appointment, not the decision to refuse an appointment. A successful appellant "cannot claim more than the integrity of the application of the merit principle" (per Desjardins J.A. in Lo v. Public Service Commission Appeal Board (1997), 222 N.R. 393 (F.C.A.) at 398).
[7] As indicated above, this case involves an appeal of an appointment made without competition under subsection 10(2). The circumstances prescribed for purposes of subsection 10(2) are found in section 4(2) of the Public Service Employment Regulations. In this case, the applicable provision was Regulation 4(2)(c):
| . . . where an employee is to be promoted within an occupational group in which positions are classified according to the qualifications of the incumbents.
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. . . la promotion d'un fonctionnaire à l'intérieur d'un groupe professionnel dans lequel les postes sont classifiés selon les qualités des titulaires.
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[8] In January of 1997, Health Canada commenced a process to select research scientists for promotion, and invited applications. The decision as to which scientists would be promoted
rested with a committee called the Departmental Review Committee, the members of which were senior officials of Health Canada. Their mandate was to assess applications against the classification standard for scientific research. There was no limit on the number of promotions the Departmental Review Committee could authorize.
[9] The appellant, Dr. Harpal Buttar, is a research scientist with the Bureau of Drug Research of Health Canada, and is classified at the SE-RES-04 level. He responded to the invitation to submit an application for promotion. He sought to be reclassified to the SE-RES-05 level.
[10] The applications had to be assessed first by the Sectoral Committee, a committee of five senior officials of the Bureau of Drug Research, chaired by Dr. Mattok. Candidates for promotion had to be recommended by the Sectoral Committee before their applications were submitted to the Department Review Committee for consideration. However, the Departmental Review Committee was not bound by those recommendations.
[11] At a meeting in December of 1996, the Sectoral Committee considered three candidates for promotion to the SE-RES-05 level, including Dr. Buttar. They concluded that Dr. Buttar was qualified for that promotion. Indeed, they concluded that he would be the only person they would recommend for promotion to that level.
[12] In late January or early February of 1997, Dr. Mattok indicated to two other members of the Sectoral Committee that he wished to put forward additional names. The members who were consulted agreed with the proposal, provided Dr. Buttar was put forward as the best candidate from the Bureau of Drug Research. Dr. Larry Whitehouse was one of the other candidates suggested by Dr. Mattock. Dr. Whitehouse, like Dr. Buttar, was seeking a promotion to the SE-RES-05 level.
[13] The revised recommendations of the Sectoral Committee were sent to the Departmental Review Committee which, at a meeting on March 26, 1997, assessed the applications individually against the classification standard. They concluded that only Dr. Whitehouse was qualified for promotion to the SE-RES-05 level.
[14] Dr. Buttar subsequently provided the Departmental Review Committee with additional information. That committee met again for two hours on July 22, 1997 to reconsider two candidates, one of whom was Dr. Buttar. After that meeting, the Departmental Review Committee continued to maintain that Dr. Buttar was not qualified for promotion to the SE-RES-05 level.
[15] Dr. Buttar appealed pursuant to subsection 21(1.1) of the Public Service Employment Act, the relevant parts of which read as follows:
| 21(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission [. . .].
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21(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) 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 [. . .].
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It is undisputed that Dr. Buttar was entitled to appeal the appointment of Dr. Whitehouse under this provision.
[16] The appeal board noted the jurisprudence on the limited scope and purpose of a section 21 appeal. The appeal board cited a passage from the case of Leckie v. Canada, [1993] 2 F.C. 473 (F.C.A.) rejecting the argument that an appeal can be used as a means of establishing or protecting a person's entitlement to a promotion. The appeal board then stated the following conclusion:
| Therefore my inquiry must centre upon the appointment of Dr. Whitehouse to the SE-RES-05 level and whether he meets the qualifications for appointment to that level. While the actions of Dr. Mattok as chairperson of the Sectoral Committee appear highly irregular, that committee was not authorized to determine if scientists would be promoted. Its mandate was to recommend to the Departmental Review Committee those scientists it believed should be considered for promotion. The Departmental Review Committee concluded that Dr. Whitehouse was qualified for promotion to the SE-RES-05 level. While there is no legal requirement for such a committee to keep notes of its deliberations, a prudent selection committee would do so, in order to be able to recall accurately (often at a much later date), the precise basis upon which it reached its conclusions. However, I have not been presented with any cogent evidence that Dr. Whitehouse is not qualified for appointment to the SE-RES-05 level and therefore I must dismiss the appeal against his appointment. |
| While I can understand that the consistent application of the standard of competence is of concern to the appellant, this is not a matter I can address within the context of an appeal pursuant to section 21 of the Act. Therefore he will have to seek another forum to address that issue. |
[17] Dr. Buttar sought judicial review of this decision. This raises a question of law as to the requirements of the merit principle and the standard of review is correctness: Boucher v. Attorney General of Canada, A-699-98, January 20, 2000; [2000] F.C.J. No. 86.
[18] In a decision dated December 29, 1998, the Judge dismissed the application for judicial review. He said, at paragraph 11:
| [...] the Board"s jurisdiction was not to compare the competence of Dr. Buttar against that of Dr. Whitehouse but was limited to the question of whether Dr. Whitehouse met the qualifications for appointment to the level that he obtained. |
[19] The Judge said that, because Dr. Buttar was not alleging that Dr. Whitehouse did not meet the qualifications, the appeal board had no jurisdiction.
[20] I am unable to agree with the Judge's characterization of Dr. Buttar's challenge to the appointment of Dr. Whitehouse. Nor do I agree that the jurisdiction of the appeal board is as limited as the Judge suggests.
[21] Dr. Buttar's complaint is rooted in the fact that the Sectoral Committee, a group that was not the decision maker but was an integral component of the selection process and was knowledgeable as to the relevant standards, concluded that Dr. Buttar was qualified for the promotion he sought. It is worth noting that the addition of Dr. Whitehouse to the candidates considered by the Sectoral Committee followed a procedure that the appeal board characterized as "highly irregular". It is also significant that the appeal board, and the Court, were hampered in their ability to examine the basis of the conclusions reached by the Departmental Review Committee because no notes were kept of its deliberations.
[22] Against that background, the fact that Dr. Whitehouse was appointed and Dr. Buttar was not suggests the possibility that one of two errors may have been made. One possibility is that Dr. Whitehouse was not qualified and did not merit the promotion. The other possibility is that he and Dr. Buttar were not assessed according to the same standards. Of course it is also possible that no error was made.
[23] The problem, however, is that the appeal board perceived a limitation to its jurisdiction that precluded it from even considering the possibility that the selection standards were inconsistently applied. It is conceded by counsel for the Attorney General that in a selection process of the kind undertaken here, a failure to apply the standards consistently would offend the merit principle. Thus the appeal board failed to discharge its mandate, which is to guard the integrity of the application of the merit principle. While it has been said that an appellant cannot claim more than the integrity of the application of the merit principle, it is equally true that an appellant should not be obliged to settle for less.
[24] In the circumstances of this case, the validity of the appointment of Dr. Whitehouse could not fairly be determined without considering whether his qualifications were assessed on the basis of the same standards as were applied to other candidates simultaneously seeking promotion to the same level. The appeal board erred in declining to consider that issue.
[25] This appeal should be allowed and the decision of the Judge should be set aside. Dr. Buttar's application for judicial review should be allowed and his appeal under section 21 of the Public Service Employment Act should be reconsidered by a differently constituted appeal board
on the basis of these reasons.
Karen R. Sharlow
J.A.
"I agree
Robert Décary J.A."
"I agree
Brian Malone J.A."
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