Date: 20000608
Docket: A-769-98
CORAM: STONE J.A.
NOËL J.A.
McDONALD J.A.
| IN THE MATTER OF and appeal pursuant to s. 21 of the Public Service Employment Act. |
| AND IN THE MATTER OF the appeal of Ranjit Perera against the selection made for appointments in closed competition 95/96-EX-IDA-302 to several positions |
| AND IN THE MATTER OF a decision dated 4th day of October 1996 of Mr. John Mooney, Chairman of an Appeal Board struck pursuant to the provisions of s. 21 of the said Act. |
| AND IN THE MATTER OF The Honourable Mr. Justice Rouleau"s decision rendered in writing on 17th December 1998, in response to an application pursuant to the provisions of ss. 18 and 18.1 of the Federal Court Act by the Attorney General of Canada. |
BETWEEN:
DR. RANJIT PERERA
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario on Tuesday, May 9, 2000
Judgment delivered at Ottawa, Ontario on Thursday, June 8, 2000
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRING REASONS BY: STONE J.A.
DISSENTING REASONS BY: McDONALD J.A.
Date: 20000608
Docket: A-769-98
CORAM: STONE J.A.
NOËL J.A.
McDONALD J.A.
| IN THE MATTER OF and appeal pursuant to s. 21 of the Public Service Employment Act. |
| AND IN THE MATTER OF the appeal of Ranjit Perera against the selection made for appointments in closed competition 95/96-EX-IDA-302 to several positions |
| AND IN THE MATTER OF a decision dated 4th day of October 1996 of Mr. John Mooney, Chairman of an Appeal Board struck pursuant to the provisions of s. 21 of the said Act. |
| AND IN THE MATTER OF The Honourable Mr. Justice Rouleau"s decision rendered in writing on 17th December 1998, in response to an application pursuant to the provisions of ss. 18 and 18.1 of the Federal Court Act by the Attorney General of Canada. |
BETWEEN:
DR. RANJIT PERERA
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision by Rouleau J. granting the respondent"s application for judicial review of a decision of an appeal board established under the Public Service Employment Act (the "Act"),1 which had held itself competent to dispose of a constitutional challenge directed against section 27 of the Public Service Employment Regulations (the "Regulations").2
Background
[2] The appellant applied for a position in a closed competition being held to staff positions at the Canadian International Development Agency ("CIDA") in the "EX group" and in the Scientific and Professional categories. He was screened out because he did not occupy a position within those groups.
[3] The appellant brought an appeal pursuant to section 21 of the Act. At the opening of the hearing before the appeal board, CIDA"s representative objected that the impugned appointments could not be appealed since all persons appointed occupied positions in the executive group prior to their appointments and section 27 of the Regulations provides that appointments of persons in the executive group to other positions in that group are excluded from the operation of section 21 of the Act. The provisions of the Act and Regulations providing for this exclusion read as follows:
| The Act
35(1) The Commission may make such regulations as it considers necessary to carry out and give effect to this Act.
(2) Without limiting the generality of subsection (1), the Commission may make regulations
...
| (e) respecting the appointment to and within the Public Service of persons in the executive group and excluding any such person or any group of such persons from the operation of any or all of the provisions of this Act; |
...
|
La Loi
35. (1) La Commission peut prendre toute mesure d'ordre réglementaire nécessaire selon elle à l'application de la présente loi.
(2) Sans préjudice de la portée générale du paragraphe (1), la Commission peut, par règlement
[...]
e) prévoir la nomination, interne ou externe, de fonctionnaires du groupe de la direction et les soustraire à l'application de tout ou partie de la présente loi;
[...]
|
| The Regulations
27(1) Section 21 of the Act does not apply where an employee in the executive group is appointed to another position in that group.
(2) Sections 17 to 26 do not apply in respect of an employee in the executive group who is appointed or about to be appointed to another position in that group.
|
Les règlements
27(1) Tout fonctionnaire faisant partie du groupe de la direction est soustrait à l"application de l"article 21 de la Loi lorsqu"il est nommé à un autre poste de ce groupe.
(2) Les articles 17 à 26 ne s"appliquent pas à la nomination, effective ou imminente, d"un fonctionnaire du groupe de la direction à un autre poste de ce groupe.
|
[4] The appellant submitted that section 27 of the Regulations cannot operate to bar him from exercising his right of appeal since it offends section 15 of the Canadian Charter of Rights and Freedoms (the "Charter")3 by "depriving victims of discrimination, such as himself, from recourse and therefore promoting and perpetuating direct and systemic discrimination against those groups."4 The appellant is part of a visible minority group and an appeal board established pursuant to section 31 of the Act had found back in 1994 that CIDA had discriminated against him in recommending his release and in failing to promote him.5 The recommendation made by the appeal board on that occasion that the appellant be promoted has, to this date, been ignored by CIDA. The appellant submitted that but for the discrimination, he would have been appointed to the EX group long ago and hence would not have been screened out of the competition. As otherwise, he was amongst the most meritorious within the group of candidates, his exclusion was in breach of the merit principle and section 27 of the Regulations stands as an unconstitutional limitation to his right of appeal.
[5] The appellant also argued that paragraph 35(2)(e) of the Act must not be given effect since it contradicts subsection 35(1) and the general intent of the Act by allowing for the promulgation of regulations such as section 27 which defeat the fundamental purpose of the Act, namely the respect of the merit principle embodied in sections 10 and 12:
| 10. 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.
|
10. 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
|
| 12. (1) Subject to subsection (2), the Commission may, in determining pursuant to section 10 the basis of assessment of merit in relation to any position or class of positions, prescribe selection standards as to education, knowledge, experience, language, residence 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.
(2) Any selection standards prescribed under subsection (1) in relation to any position or class of positions shall not be inconsistent with any classification standard established under the Financial Administration Act for that position or any position in that class.
(3) The Commission, in prescribing or applying selection standards under subsection (1), shall not discriminate against any person by reason of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
(4) Subsection (3) does not apply in respect of the prescription or application of selection standards that constitute bona fide occupational requirements having regard to the nature of the duties of any position.
|
12. (1) La Commission peut, en déterminant conformément à l"article 10 le principe de l"évaluation du mérite pour tout poste ou catégorie de postes, édicter des normes de sélection touchant à l'instruction, aux connaissances, à l'expérience, à la langue, au lieu de résidence ou à tout autre titre ou qualité nécessaire ou souhaitable à son avis du fait de la nature des fonctions à exécuter.
(2) Les normes de sélection ne peuvent être incompatibles avec les normes de classification édictées sous le régime de la Loi sur la gestion des finances publiques pour le poste ou tout poste de la catégorie en cause.
(3) Dans la formulation ou l'application des normes de sélection visées au paragraphe (1), la Commission ne peut faire intervenir de distinctions fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
(4) Le paragraphe (3) ne s'applique pas à l"établissement ou à l'application de normes de sélection qui sont des exigences justifiées par la nature des fonctions d'un poste.
|
| (5) At the request of representatives of any employee organization certified as a bargaining agent under the Public Service Staff Relations Act or of the employer as defined in that Act or where, in the opinion of the Commission, consultation is necessary or desirable, the Commission shall from time to time consult with those representatives or with the employer with respect to the selection standards that may be prescribed under subsection (1) or the principles governing the appraisal, promotion, demotion, transfer, lay-off or release of employees.
|
(5) À la demande des représentants d"une organisation syndicale accréditée comme agent négociateur selon la Loi sur les relations de travail dans la fonction publique ou de l"employeur tel que défini dans cette loi, ou lorsqu"elle le juge utile, la Commission consulte, en tant que de besoin, les représentants de cette organisation ou l"employeur au sujet des normes de sélection visées au paragraphe (1) ou des principes régissant l"évaluation, l"avancement, la rétrogradation, la mutation, la mise en disponibilité ou le renvoi de fonctionnaires.
|
[6] The appellant argued that if he could establish that there had been a violation of subsection 12(3) and section 10, it would follow that his section 15 rights under the Charter were also violated.
[7] Prior to the hearing before the appeal board, the appellant gave notice pursuant to section 57 of the Federal Court Act6 wherein the constitutional question was phrased as follows:
| Given the factual circumstances of this case should s. 27 of the PSER and paragraph 35(2)(e) PSEA be declared of no force and effect? |
| (a) paragraph 35(2)(e) of the PSEA contradicts subsection 35(1) and the general intent of the Act by allowing for the promulgation of regulations such s. 27 which defeat the fundamental purpose of the Act; |
| (b) regulations must be consistent with their constituent statutes and section 27 of the PSER removes the application of two of the most fundamental sections of the PSEA, sections 10 and 12; |
| (c) section 27 of the Regulations violates section 15 of the Charter because it promotes and/or perpetuates systemic discrimination in the management category of the federal public service; and |
| (d) in addition, the application of section 27 of the Regulations should be declared of no force and effect with respect to its application to the appellant because it would breach his section 15 equality rights given the particular circumstances of this case i.e. in spite of a decision of the Public Service Commission Appeal Board that he was discriminated against, and recommendations made to remedy the same, CIDA has taken no action.7 |
This notice also contained a detailed statement of the material facts on which the appellant relied in support of his constitutional challenge and was placed before the appeal board together with the background material which the appellant considered relevant to this determination
[8] CIDA"s representative maintained that the appeal board could not proceed further on the issue of whether section 27 of the Regulations infringes section 15 of the Charter since it does not have jurisdiction to decide Charter issues. It asked the appeal board to render a decision on that question without inquiring any further.
[9] In a lengthy decision, the appeal board held that section 27 of the Regulations was intra vires the Act. The board also held that it had the jurisdiction to dispose of the constitutional challenge against section 27.
[10] The respondent attacked the decision of the board by way of judicial review insofar as it held that it had jurisdiction to dispose of the constitutional challenge. By a decision rendered on December 17, 1998, Rouleau J. held that the board did not have the power to interpret the law, let alone entertain a constitutional challenge.
[11] This is the decision now under appeal.
Other Related Proceedings
[12] It is of relevance to the issues in this appeal to note that the appellant is a plaintiff in two outstanding actions in the Trial Division.
[13] In the first, he seeks, inter alia, damages pursuant to section 24(1) of the Charter for discrimination allegedly suffered during the appellant"s employment with CIDA. On March 31, 1998, in an appeal arising out of an interlocutory proceeding in this action, this Court held that the Trial Division has jurisdiction pursuant to section 24(1) to provide remedies in the form of the orders requiring, inter alia , the taking of measures to rectify alleged discrimination in hiring in the senior management category.8
[14] In the other action, he seeks, inter alia, a declaratory judgment pursuant to sections 24(1) of the Charter and 52(1) of the Constitution Act, 1982, that section 27 of the Regulations is of no force and effect. All further proceedings before the appeal board in the matter with which we are concerned have been stayed on consent pending the final disposition of this action.9
Analysis and Decision
[15] The state of the law, insofar as it pertains to the issue raised in this appeal, was summarized by La Forest J. who wrote the majority decision in Cooper v. Canada (HRC), [1996] 3 S.C.R. 854 at 886:
| In three previous cases, Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra, this Court has had the opportunity to address the principles underlying an administrative tribunal"s jurisdiction to consider the constitutionality of its enabling statute. These authorities make it clear that no administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1) of the Constitution Act, 1982. Rather, the essential question facing a court is one of statutory interpretation -- has the legislature, in this case Parliament, granted the administrative tribunal through its enabling statute the power to determine questions of law? (my emphasis) |
This grant cannot be found to exist unless it is first established that the tribunal has jurisdiction "over the whole of the matter before it, namely, the parties, subject matter and remedy sought."10 Only then does the question of the tribunal"s jurisdiction to determine questions of law and the constitutional validity of its enabling legislation arise.
[16] I do not read the dissenting reasons of McLachlin J. (concurred in by L"Heureux-Dubé J.) as holding otherwise on this fundamental point. A tribunal which does not have the jurisdiction to deal with the matter before it in accordance with its enabling statute cannot be said to have acquired jurisdiction over the subject matter by virtue of the Charter. As McLachlin J. concluded from her review of the case law:
| ... provided that an administrative tribunal is discharging a function assigned to it by its legislation, it may, in the course of doing so, consider and decide Charter issues.11 (my emphasis) |
[17] In this instance, the jurisdiction of the board is spelled out in section 21 of the Act:
| 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.
|
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.
|
| (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 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.
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), 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.
|
(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, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non.
|
| (2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
(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.
|
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications.
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
|
| (4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit
|
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
|
[18] The board"s general powers are enunciated in section 7.4 of the Act:
| 7.4 Subject to such restrictions or limitations as the Commission may specify, a board established under subsection 6(3), 21(1), 21(1.1) or 34(1) has, in relation to the matter before it, the powers referred to in section 7.2.
7.2 In connection with and for the purposes of any investigation or report, other than an audit, by the Commission under this Act, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.
|
7.4 Les comités visés aux paragraphes 6(3), 21(1), 21(1.1) ou 34(1) disposent, relativement à la question dont ils sont saisis, des pouvoirs attribués à la Commission par l'article 7.2, dans les limites qu'elle fixe.
7.2 Pour les besoins de tout rapport ou enquête qu'elle effectue sous le régime de la présente loi, sauf dans le cas des vérifications, la Commission dispose des pouvoirs d'un commissaire nommé au titre de la partie II de la Loi sur les enquêtes.
|
[19] The scope and extent of the board"s jurisdiction under section 21 have been considered by this Court on numerous occasions over the years. In Canada (Attorney General) v. Viola [1991] 1 F.C. 373, Décary J.A., writing on behalf of a unanimous Court,12 stated at 383:_
| This Court has consistently held,2 and I adopt the wording of Thurlow C.J. in Ricketts [at page 382]: |
| ... that the determination of the essential and other requirements for a position in the public service is not a function of the Public Service Commission under the Public Service Employment Act, that it is a function of management falling within the authority of a minister to manage his department under the statute establishing the department, that the function of the Commission under section 10 of the Public Service Employment Act is to select from among candidates who have the qualifications required by the department the candidate who is best qualified for the position and to appoint him to it and that the function of an appeal board established under section 21 of the Public Service Employment Act is to enquire not into the qualifications established by the department for a position but into the question whether the merit principle prescribed by section 10 has been observed in the selection and appointment of a candidate who has the qualifications determined by the department for the position. |
| 2Bauer v. Public Service Appeal Board, [1973] F.C. 626 (C.A.); Demers v. Attorney General of Canada, [1974] 1 F.C. 270 (C.A.); Brown v. Public Service Commission, [1975] F.C. 345 (C.A.); Irwin v. Public Service Commission Appeal Board, [1979] 1 F.C. 356 (C.A.); Ricketts v. Department of Transport 1983, 52 N.R. 381 (F.C.A.); Guy v. Public Service commission Appeal Board, [1984] 2 F.C. 369 (C.A.). |
[20] The role of the appeal board, although important, is narrowly confined. It must insure that the merit principle is respected within the requirements devised by the employer; the board has no say with respect to the qualifications which an employer-department considers necessary or desirable. These are a function of management falling within the authority of a minister to manage his or her department under its enabling statute. The appeal board is only concerned with the actions of the Public Service Commission ("the Commission") in selecting from among the candidates who have the qualifications required by the employer-department, the one who is the most meritorious.
[21] In this respect, it is important to note the difference between selection standards established by the Commission pursuant to subsection 12(1), and qualifications or requirements devised by the employer-department as a function of management having regard to its needs. While the former falls within the jurisdiction of a section 21 appeal board,13 it has long been established that the latter falls within the exclusive control of management.
[22] This fundamental distinction was succinctly put by Marceau J.A. in Canada v. Blashford [1991] 2 F.C. 44 at 48:
| _As I understand the scheme of the Act, the "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establishment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Department . The Delanoy decision relied on by the Appeal Board was concerned not with basic qualifications but with selection standards, a point that Ryan J., in delivering the reasons of the Court, took care to point out. (footnote omitted) (my emphasis)14 |
Selection standards therefore operate within the parameters of the basic qualifications devised by the employer-department. In this instance, the evidence before the appeal board indicates that the basic requirements which resulted in the appellant being screened out of the competition were developed by CIDA although the Commission was consulted and did approve them.15
[23] In Viola, the appeal board had taken it upon itself to disregard a linguistic requirement devised by the employer-department on the basis that it was "arbitrary," "improper" and not warranted by the Official Languages Act, 1988 .16 The board noted:
| It is not at all certain that the proposed appointment would have been the same if proficiency in both official languages had not been a condition of appointment...17 |
and went on to allow the appeal. It did so on the basis that the "arbitrary" and "improper" language requirement may have offended the merit principle by preventing better qualified individuals who did not meet the requirements in question from obtaining the contested position.18
[24] Upon this decision being attacked pursuant to section 28 of the Federal Court Act, as it then read, this Court was called upon to determine whether the appeal board, as the guardian of the merit principle, had the power to pronounce itself on the linguistic requirement devised by the employer-department. After a detailed review of the statute and the case law, the Court concluded that:
| ... an Appeal Board can no more question the language requirements of a position than it can, for example, question the requirements as to education, knowledge, experience or residence.19 |
It did so on the basis that decisions taken by the employer-department as a function of management were beyond the reach of the Commission and hence outside the jurisdiction of the appeal board.
[25] In this instance, the subject matter over which the board assumed jurisdiction is whether the Commission, by concluding that the appellant did not meet the eligibility requirements and screening him out of the competition on that basis, despite the appellant"s allegation that but for the discrimination he would have met these requirements, breached the merit principle under the Act and his right to equality under section 15 of the Charter. The appellant argues convincingly that if he can show that the merit principle has been breached by reason of the direct and systemic discrimination which he suffered at the hands of CIDA, it will logically follow that his constitutional right to equality has also been breached.20 The remedy would lie in the board"s jurisdiction to read down the limitation to the appellant"s right of appeal pursuant to section 52(1) of the Constitutional Act, 1982 , hold that the merit principle has been breached and requires the Commission to revoke the appointments improperly made21.
[26] As noted earlier, a tribunal may consider the constitutional validity of its enabling legislation only if it already has jurisdiction over the whole of the matter before it.22 This means that before addressing the constitutional question, the appeal board had to be satisfied that, but for section 27 of the Regulations, it had jurisdiction over the appeal lodged by the appellant.23
[27] As we have seen, the appeal board"s jurisdiction consists in overseeing the role of the Commission, which is to conduct the selection process and rank candidates according to merit within that process. The board reviews the selection process as conducted by the Commission and insures that where irregularities are found in that process, they do not result in an appointment which contravenes the merit principle.24
[28] The underlying allegation on which the jurisdiction of the board was said to rest in Viola was that the employer devised an "improper" or "arbitrary" qualification which prevented the best candidate from being selected thereby offending the merit principle. The underlying allegation on which the jurisdiction of the board is said to rest in this instance is that the employer over time engaged in direct discrimination and systemic discriminatory practises the effect of which was to prevent the appellant from being promoted to the EX group and therefore from being eligible and selected for one of the contested positions, thereby offending the merit principle.25
[29] The actions of an employer-department in the management of its affairs have never been held to come within the jurisdiction of an appeal board even if they should be illegal and compromise the merit principle. This view in Viola was expressed as follows:
| All that may concern the appeal board is the selection of the candidate by the Commission, once the necessary qualifications have been defined by the department. |
The Court went on:
| This does not mean that the department's decision is beyond all judicial review ... |
| This means that the department must account not to the appeal board but rather to the Federal Court Trial Division ... if it commits an impropriety or illegality in determining the necessary conditions.26 |
[30] I do not see how the result can be different in this instance. If anything, the illegalities alleged to have been committed by the employer-department are further removed from the appeal board"s jurisdiction than they were in Viola . What the appellant intends to demonstrate during a hearing estimated to last 15 to 20 days is that CIDA has, in the management of its personnel over the years, engaged in continuous and ongoing discriminatory practises directed against visible minorities generally and himself in particular.27 Therein lies the factual basis on which the merit principle is said to have been breached and on which the remedy is sought before the appeal board.28
[31] Even though the appellant has before the appeal board and throughout the proceedings alleged that the Commission has breached section 10 and subsection 12(3) of the Act, he has until now asserted no facts which, if taken as proven, could have allowed the board to conclude that the Commission has breached its statutory duty under either section and to assume jurisdiction on this basis. In particular, no attack was made with respect to the selection standards devised by the Commission and no irregularity has been identified in the selection process conducted by the Commission. Indeed, there is no suggestion that this process did not result in the selection of the most meritorious candidates amongst those who met the eligibility requirements devised by the employer.
[32] It is therefore clear that when the appellant writes in his second appeal letter:
| It is my submission that given the circumstances of my case, the selection process is an infringement or violation of section 10 and section 12 of the Public Service Employment Act29, |
he is not attacking the selection process as it has been circumscribed by this Court but the fact that the Commission screened him out of this process because he did not meet the eligibility requirement devised by the employer. As we have seen, based on the Act as it has been construed by this Court in Viola, supra, Blashford, supra, and Ricketts, supra, the Commission had no choice but to give effect to this requirement.
[33] Finally, the appellant has also argued that the Commission has acted in bad faith and breached its statutory duty in failing to give effect to the recommendation made by the section 31 appeal board back in 1994 that the appellant be promoted. I simply note in this respect that this recommendation was directed at CIDA and not the Commission and that the Commission, no more than the section 31 appeal board or for that matter a section 21 appeal board, possesses the statutory authority to compel CIDA to abide by this recommendation.
[34] Before concluding on the absence of the Commission"s authority to intervene in this case, I must acknowledge that in Bambrough , supra, Le Dain J.A. expressed the view that the Commission had the implied power to participate with the employer-department in establishing the qualification for a position:
| The Commission must have the power to assure that the specific qualifications are those that are called for by the position and that the statement of such qualifications affords a sound basis for a process of selection according to merit. I would infer this power from the Commission"s responsibility for appointment under sections 5, 8 and 10 of the Act , rather than from its power, under section 12, to prescribe selection standards.30 |
It will be recalled that in this instance, the evidence before the board was that the Commission was consulted and approved the eligibility requirements developed by CIDA.
[35] The implied power of the Commission to participate in the elaboration of basic qualifications and requirements is difficult to reconcile with more recent jurisprudence. Indeed, Décary J.A. in Blashford expressed the view that the Commission"s implied power to "participate" as expressed by Le Dain J.A. must be construed as being very narrow:
| To the extent, therefore, that the Commission does have the power to "participate" in the establishment of qualifications once the selection process has begun, Bambrough would be authority for the proposition that the Commission may at the most be involved in a mere reasonable elaboration of the requirements suggested by the original qualifications. [my underlining]31 |
If this is the proper statement of what Bambrough stands for, as I believe it must be as in light of Viola, supra, Blashford, supra, as well as Ricketts, supra, it is clear that the Commission in this instance does not have had the implied authority to reject the eligibility requirements developed by CIDA.
[36] In order to assume jurisdiction over the constitutional question, the appeal board had to be satisfied that it had jurisdiction over the appeal. In my view, the board had no such jurisdiction.
[37] Having so concluded, I feel compelled to add that if, despite the consistent holdings of this Court, it should be found that the appeal board has jurisdiction over the appeal, I would be inclined to find that it also has the jurisdiction to dispose of the constitutional challenge. I venture this opinion for the following reasons.
[38] The reasons of LeDain J.A. in Bambrough, supra, if read in isolation, reflect the only basis on which the appeal board could be said to have jurisdiction to hear the appeal in this matter. Having regard to the facts asserted by the appellant, the argument would be that the Commission in the exercise of its implied power, failed to insure that the eligibility requirements devised by CIDA were "called for" by the position to be filled and"[afforded] a sound basis for a process of selection according to merit."32
[39] Assuming that the Commission has such a power, the subject matter before the appeal board would be whether the Commission, by adhering to the eligibility requirements devised by the employer, the effect of which is to maintain and perpetuate the discriminatory practises of the employer, breached the merit principle under the Act, and the appellant"s right to equality under section 15 of the Charter . The remedy would remain as formulated at paragraph [25].
[40] As was stated by Laforest J. in Coopper, supra, a tribunal has the power to pronounce on constitutional validity of its enabling legislation if parliament has conferred upon it the power to decide general questions of law. This grant may be express or implied and is a pure function of the will of Parliament.
[41] Based on the above assumption, the constitutional challenge would fall squarely within the appeal board"s jurisdiction, as the limitation of the right of appeal would stand as a barrier to both the appellant"s right to be promoted in accordance with the merit principle under the Act and his right to equality under the Charter. Because a conclusion that either one of these rights has been breached would necessarily flow from the same set of facts and invite identical findings, I am of the view that if the appeal board was intended by Parliament to have jurisdiction over one it must also have been intended to have jurisdiction over the other.
[42] That being said I do not believe, for the reasons outlined in paragraphs 15 to 36, that the Commission was intended by Parliament to have any authority over the qualifications and requirements devised by the employer for the selection and promotion of its personnel. To hold otherwise would alter the jurisdiction of the appeal board in a manner which Parliament did not contemplate.
[43] It follows that the appeal board has no jurisdiction over the appeal and a fortiori it has no jurisdiction over the constitutional question.
[44] I would therefore dismiss the appeal. As the appellant is faced with what continues to be the difficult task of identifying the proper forum in which to assert his constitutional rights, I would award no costs.
"Marc Noël"
J.A.
Date: 20000608
Docket: A-769-98
(T-2386-96)
CORAM: STONE J.A.
NOËL J.A.
McDONALD J.A.
| IN THE MATTER OF and appeal pursuant to s. 21 of the Public Service Employment Act. |
| AND IN THE MATTER OF the appeal of Ranjit Perera against the selection made for appointments in closed competition 95/96-EX-IDA-302 to several positions |
| AND IN THE MATTER OF a decision dated 4th day of October 1996 of Mr. John Mooney, Chairman of an Appeal Board struck pursuant to the provisions of s. 21 of the said Act. |
| AND IN THE MATTER OF The Honourable Mr. Justice Rouleau"s decision rendered in writing on 17th December 1998, in response to an application pursuant to the provisions of ss. 18 and 18.1 of the Federal Court Act by the Attorney General of Canada. |
BETWEEN:
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STONE J.A.
[1] I have had the advantage of reading in draft the reasons for judgment of my colleagues in this matter.
Factual background
[2] The appellant is a long-time public servant employed at the Canadian International Development Agency (the "Agency"). His time with the Agency has not been entirely happy, as is evident from his complaint of discrimination in employment which culminated with an appeal board"s decision in his favour of November 22, 1994 in file number 91-IDA-0972R1, which has yet to be implemented.
[3] The present dispute centres on the selection for appointment in 1996 to various positions as Directors General of the Agency of a number of individuals in closed competition 95/96-EX-IDA-302. The competition was expressly stated to be open to: "Employees of the Public Service in the EX Group in the Scientific and Professional Categories".33 The duties of a Director General for the purpose of the competition were:34
| The Director General is responsible for providing leadership and direction in the development and integration of coherent strategic management approaches and planning activities of the Branch; and for CIDA external relations and consultations with stakeholders that have established programs in support of developing countries. |
The screening criteria for the positions included "[e]xtensive experience in managing complex, major programs/projects", "directing multi-sectoral working group" in policy development, and "managing a full range of human and financial resources at the senior level".35
[4] The appellant sought to participate in that competition. By letter of February 15, 1996, he was informed by the Public Service Commission (the "Commission") that he "did not meet the basic requirements in relation to the eligibility (i.e. employees of the Public Service in the EX Group and in the Scientific and Professional Categories)36 and, accordingly, was screened out of the competition. An initial attempt to appeal the screening out decision was rejected as premature because the competition had not been completed. On May 3, 1996, the appellant was informed by the Commission that by reason of section 27 of the Public Service Employment Regulations (the "Regulations) an appeal board would have no authority to intervene if the appointment was made from within the executive group but that he would be informed of his appeal rights if the appointment was made of an employee who was not in that group.37
[5] On May 6, 1996 the appellant was advised that the Selection Board had completed its assessment of the candidates" qualifications for the positions in question and that the Commission had approved its recommendation.38 The appellant"s appeal to the appeal board followed by letter of May 17, 1996.39 In that letter, the appellant set out the following as the grounds of his appeal:
| My grounds for appealing the said competition were summarized in my original appeal. It is my submission that given the circumstances in my case, the selection process is an infringement or violation of section 10 and section 12, of the Public Service Employment Act. It is also an infringement of my s. 15 Charter right to equal protection and equal benefit of the law. It is also my submission that section 27 of the Public Service Employment Regulations, i.e. the basis on which I was disqualified in the selection process, is in effect an infringement of section 10 and section 12 of the Public Service Employment Act. Furthermore, given the systemic discrimination against visible minority employees that has prevailed in promotions to senior management positions in CIDA and in the Federal Public Service in General, in the period since the section 15 of the Charter came into effect section 27 of the Public Service Employment Regulations is in effect an infringement of s. 15 Charter Rights in visible minority public servants in general and in the circumstances of this case, my s. 15 Charter Rights in particular. Further more, the basic requirements outlined is unfair and unreasonable, and not rationally connected, to the duties and responsibilities of the positions identified. |
[6] An appeal board was then established by the Commission pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "Act") to deal with the appeal. At the outset, however, the respondent raised a preliminary objection with respect to the board"s jurisdiction to hear and determine the appeal, on the basis that by reason of section 27 of the Regulations no appeal lay against the appointments because all of the persons appointed were made from the executive group. The decision of the appeal board of October 4, 1996 determined that it possessed jurisdiction in the matter.
[7] The learned Motions Judge disagreed. It was his view that the appeal board"s function under section 21 of the statute was limited "to fact finding" in ensuring that the merit principle embodied in section 10 of the Act is respected. He was further of the view, on the basis of the Supreme Court"s decision in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, that the appeal board had no independent source of jurisdiction pursuant to subsection 52(1) of the Constitution Act, 1982 and, finally, that it had "not been granted any powers to interpret the law" and, therefore, to "entertain a constitutional challenge".
[8] The issue before this Court is whether the Motions Judge erred in concluding that the appeal board was without jurisdiction to determine the issue raised in the appellant"s appeal to that body.
[9] The relevant statutory provisions are fully set forth by my colleagues in their reasons. For the sake of convenience, however, I shall here recite the provisions of section 21 of the Act and subsection 27(1) of the Regulations. Section 21 of the Act reads:
| 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.
(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 b 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.
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), 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. |
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
(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.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
|
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.
|
(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, au cours de laquelle l"appelant et l"administrateur général en cause, ou leurs représentants, ont l"occasion de se faire entendre.
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci:
| a) si la nomination a eu lieu, la confirmer ou la révoquer; |
| b) si la nomination n"a pas eu lieu, y procéder ou non. |
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu"elle juge en rapport avec ses qualifications.
(3) La Commission peut prendre toute mesure pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l"objet d"un appel conformément aux paragraphes (1) ou (1.1) qu"au motif que la mesure prise est contraire au principe de la sélection au mérite.
|
|
Subsection 27(1) of the Regulations as authorized by paragraph 35(2)(e) of the Act, reads:
| 27. (1) Section 21 of the Act does not apply where an employee in the executive group is appointed to another position in that group.
|
27. (1) Tout fonctionnaire faisant partie du groupe de la direction est soustrait à l"application de l"article 21 de la Loi lorsqu"il est nommé à un autre poste dans ce groupe.
|
Analysis
[10] In deciding as they did, both the appeal board and the Motions Judge took guidance from the decisions of the Supreme Court of Canada in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 and in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The Motions Judge had the advantage of the further guidance of the Supreme Court in Cooper, supra. The ratio of those decisions stress that whether a given administrative tribunal possesses jurisdiction to deal with a Charter issue turns largely, though not exclusively, on the interpretation of the relevant statute. The basic principle articulated by the Supreme Court is that "an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid": Cuddy Chicks , supra, per La Forest J., at 13. An express mandate to determine a question of law will normally be regarded as "the most important factor" in deciding whether a tribunal has the power to determine Charter issues: Tétreault-Gadoury , supra, per La Forest J., at 32. However, "the power to consider questions of law can be bestowed on an administrative tribunal either explicitly or implicitly by the legislature": Cooper , supra, per La Forest J., at paragraph 46.
[11] In addition, La Forest J. stated in Cooper, supra, at paragraph 47:
| In considering whether a tribunal has jurisdiction over the parties, the subject matter before it, and the remedy sought by the parties, it is appropriate to take into account various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal. These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature. At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal having constitutional competence, though such concerns can never supplant the intention of the legislature. |
[12] In Cooper, supra, the issue concerned the constitutionality of paragraph 15(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 and, specifically, whether the Canadian Human Rights Commission or a tribunal established by it had jurisdiction to determine the particular issue. In reviewing the scheme of this statute, La Forest J. noted, at paragraph 53, that the Commission was "not an adjudicative body" and that the central component of its role "is that of assessing the sufficiency of the evidence before it". Although the statute bestowed on the Commission the power to interpret and apply its enabling statute, it did not follow that it was granted jurisdiction to address general questions of law. La Forest J. concluded, at paragraph 58, that there was "simply nothing in the Act indicating that the Commission" had the mandate to determine the constitutionality of paragraph 15(c ). He then went on to examine various practical considerations in determining whether the Commission had jurisdiction over the parties, the subject matter of the dispute and the remedy sought. Those considerations, in his view, were not in themselves determinative. It was his view that the Commission was not an adjudicative body and, moreover, that it lacked expertise to deal with the Charter issue.
[13] The appellant does not argue that the Act bestows explicit powers on the appeal board to determine the constitutionality of section 27. His principal argument is that jurisdiction may be implied from the Act and from other relevant circumstances. In his submission, the Motions Judge erred in confining himself to a consideration of whether jurisdiction was expressly conferred and by giving no consideration to the argument that jurisdiction is to be implied.
[14] It is apparent from his appeal notice of May 17, 1996, that the appellant seeks to establish before the Board that the process of selecting for the appointments made by the Commission did not conform to the merit principle, that the requirements for the positions were unfair and unreasonable, and that the selection process violated his section 15 Charter rights. I agree, however, that the role of the appeal board is primarily concerned with determining whether, as provided in subsection 21(3) of the Act, "there was a defect in the process" by which a person was selected for appointment to the public service.
[15] The appellant argues that such is the case here. In my view, however, and as Noël J. points out, the board"s role cannot normally extend to questioning of the job qualifications laid down by the employer. It would not be for the appeal board to determine whether discrimination played a part in their development. The board"s role is limited to determining compliance with the merit principle for the selection for appointments to the positions requiring those qualifications. The appellant"s attack on the constitutionality of section 27 of the Regulations is not directly related to the selection for appointment process. It is that section 27 infringes the appellant"s section 15 Charter rights not because of any defect in that process, but because discrimination had prevented him from being a member of the qualifying group. Even if discrimination did exist at that stage, in my view it would not establish that the process was somehow defective, and thus justify the board"s intervention, but that the employer did him wrong before the process got under way.
[16] I therefore conclude that the appeal board lacks either express or implied jurisdiction over the subject matter of the dispute. I say so despite the formal nature of the procedure which calls for a hearing upon proper notice to the parties, the summoning of witnesses and the right to examine and cross-examine witnesses called to testify before the appeal board.
[17] I should add a final point. As Noël J. states, the appellant"s appeal pursuant to section 21 of the Act is not the only string to his bow. He has instituted two additional proceedings in the Trial Division, in one of which he seeks damages and in the other a declaration that section 27 of the Regulations are of no force and effect. While the existence of those proceedings are not determinative of the issue before us, they may offer opportunity in another venue for pursuing the Charter challenge to section 27 of the Regulations.
[18] For the reasons given by Noël J. and for these reasons, I would dispose of the appeal in the manner he proposes.
"A.J. Stone"
J.A.
Date: 20000608
Docket: A-769-98
CORAM: STONE J.A.
IN THE MATTER OF an appeal pursuant to s. 21 of the Public Service Employment Act.
AND IN THE MATTER OF the appeal of Ranjit Perera against the selection made for appointments in closed competition 95/96-EX-IDA-302 to several positions
AND IN THE MATTER OF a decision dated 4th day of October 1996 of Mr. John Mooney, Chairman of an Appeal Board struck pursuant to the provisions of s. 21 of the said Act.
AND IN THE MATTER OF The Honourable Mr. Justice Rouleau"s decision rendered in writing on 17th December 1998, in response to an application pursuant to the provisions of the ss. 18 and 18.1 of the Federal Court Act by the Attorney General of Canada.
BETWEEN:
DR. RANJIT PERERA
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.
[1] I have read the reasons of my learned colleagues Mr. Justice Noël and Mr. Justice Stone and I find that I am unable to agree with their reasoning in this case. I am of the view that an Appeal Board appointed pursuant to section 21 of the Public Service Employment Act (PSEA) has jurisdiction to determine the constitutional validity of section 27 of the Public Service Employment Regulations ("the Regulations").
[2] The Appellant has urged this Court to follow the minority decision of Madam Justice McLachlin in Cooper v. Canada (Canadian Human Rights Commission).40 It is true that the reasons of the Mr. Justice La Forest for the majority have been the subject of academic criticism,41 but, this Court is not in a position to follow a minority decision of the Supreme Court of Canada in place of a majority judgement. Only the Supreme Court may revisit its previous position on this issue should the matter be brought before it.
[3] While I am bound by the decision of the majority in Cooper, I have concluded that the Appeal Board in this case meets the requirements as set out by the majority and thus has jurisdiction to determine constitutional questions.
[4] The Appellant argued before this Court that tribunals have a duty to apply subsection 52(1) of the Constitution Act, 1982 in determining any matter otherwise legitimately before them. I agree with Mr. Justice Noël that it is clear from the decision in Cooper that subsection 52(1) of the Constitution does not function as an independent source of an administrative tribunal"s jurisdiction to address constitutional issues.
[5] The proper test is whether or not Parliament has granted the Appeal Board jurisdiction to determine questions of law.42 The Supreme Court has stated that in order for an administrative body to "address a Charter issue [it] must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought."43
[6] My learned colleagues have determined that the Appeal Board cannot deal with this Charter claim because it does not have jurisdiction over the whole matter before it in this appeal. Mr. Justice Noël bases his decision on his opinion that "the actions of an employer-department in the management of its affairs have never been held to come within the jurisdiction of an appeal board even if they should be illegal and compromise the merit principle." In essence, Mr. Jusitce Noël construes this as a matter concerning the qualifications for a position. Since qualifications are determined by the departments and the Board only has jurisdiction over the selection process, my colleagues conclude that the Board does not have jurisdiction over the subject matter in this case.
[7] I am unable to agree with this position. The actual subject matter of concern in this case, as clearly stated in the Appellant"s letter appealing the selection process, is whether or not "the selection process [was] an infringement of section 10 and section 12 of the Public Service Employment Act".44 This subject matter is clearly within the jurisdiction of the Appeal Board, as is evident from section 21 of the PSEA. Subsection 21(1) reads:
| 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 ... appeal against the appointment to a Board established by the Commission... |
Mr. Justice Pratte of this Court held in Canada (Attorney General) v. Landriault that
| ...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. The Queen 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 was not within the area of the competition as defined by the competition 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).45 |
It is clear from this passage that the Appellant need not have met all the qualifications for the position in order to bring an appeal before the Board. It is up to the Board upon hearing the appeal to determine if the selection process was done in accordance with the merit principle. If the Board determines that the Appellant is not qualified it can dismiss the appeal. The Board"s decision-making process requires it to determine whether or not the criteria set by the departments for the position were applied and evaluated according to the merit principle and whether the choice between qualified candidates was a meritorious one. The fact that departments are able to establish the requirements for a given position does not mean that the Board is unable to examine the application of those criteria in a selection process.
[8] In essence, my colleagues have held that the Appeal Board does not have jurisdiction because it could not find in favour of the Appellant in this case even in the absence of section 27 of the Regulations. This is tantamount to determining that a board does not have jurisdiction over the whole of the matter unless the Court feels it is possible for the Appellant to be successful. Thus, in this case my colleagues feel that since Dr. Perera does not meet the qualifications, the Board cannot have jurisdiction to hear his appeal. With respect, this is a determination for the Appeal Board to make. In my view, this Court ought not to be confusing issues of jurisdiction with the outcome of the case on the basis of merit. It also seems problematic for this Court to make a finding of fact on the issue of whether Dr. Perera met the qualifications for this position (or whether he could be deemed to meet the qualifications in light of the prior decision of the Board regarding the discrimination he was subjected to) without hearing evidence from the parties on this question.
[9] In addition, my colleagues do not seem to consider subsection 12(3) of the PSEA when determining whether Dr. Perera could succeed in his appeal. Subsection 12(3) seems to suggest that standards used to evaluate an individual"s qualifications cannot be discriminatory. Without taking a position on this question, it may be possible for Dr. Perera to use this section to argue that since his current level of employment is the result of discrimination, he ought to be deemed to be at an executive level and therefore eligible for the position. Dr. Perera should have the opportunity to make such submissions before the Appeal Board.
[10] The Respondent also argued with regard to whether the Board has jurisdiction over the whole of the matter, that the Board in this case has no remedial powers. Under the PSEA the responsibility for remedies is given to the Public Service Commission. Such powers must be exercised in accordance with the findings and recommendations of the Board. In this way the Commission is effectively acting on behalf of the Board.46 I am thus satisfied that the Board does have jurisdiction over the whole of the matter including the remedy sought.
[11] The only question left for this Court to decide is whether Parliament intended this Board to have the power to decide questions of law. As Mr. Justice La Forest explains: "[t]here is no doubt that the power to consider questions of law can be bestowed on an administrative tribunal either explicitly or implicitly by the legislature."47 There is no dispute that the PSEA does not explicitly grant a section 21 appeal board the power to answer questions of law. It remains to be determined whether this Board has implicit power to decide such questions.
[12] In order to determine whether this Board has implied jurisdiction over questions of law this Court must have regard to a number of factors. The Respondent argued that we may only examine the words of the enabling statue to determine whether this Board has implied jurisdiction. In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), in a passage cited with approval by the majority in Cooper, the majority of the Supreme Court stated that: "jurisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise."48 [Emphasis added.] However, the majority stated earlier in Cooper that the test was whether the legislature had granted power "through its enabling statute." It is unclear then whether this court must confine itself to the wording of an administrative bodies enabling statute in grounding an implied power.
[13] For the reasons given below I find that I need not resolve such confusion in this case because the wording of the enabling statute is sufficient to ground an implied power to deal with questions of law. This outcome results from the nature of the Appeal Board, the Board"s jurisdiction, and practical considerations.
[14] In Cooper Mr. Justice La Forest identified the nature of the administrative body as a major factor to consider. Specifically, in order to find an implied power to deal with questions of law the administrative body must be adjudicative in nature. Black"s Law Dictionary defines an adjudicative hearing as "an agency proceeding in which the rights and duties of a particular person are decided after notice and an opportunity to be heard."49 The administrative body at issue in Cooper was the Canadian Human Rights Commission. The Commission serves a gatekeeping function and its role is limited to fact finding. The Supreme Court noted that there is no requirement for anything more than a "paper hearing". In short, "the role of the Commission as an administrative and screening body with no appreciable and adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law."50
[15] In contrast, subection 21(1) of the PSEA makes it clear that an appeal board created under section 21 is adjudicative in nature. Subsection 21(1) of the PSEA requires the Board to allow both sides to a dispute the opportunity to be heard. Furthermore, the Appeal Board makes a determination as between the two parties with respect to their rights. The function of the Appeal Board extends well beyond screening complaints and factual investigations. The adjudicative nature of the Appeal Board indicates to me the existence of an implied power to consider questions of law.
[16] I am of the view that the reason the adjudicative nature of the administrative body was such a fundamentally important factor both in Cooper and in the case at bar is because an adjudicative body must decide questions of law as a matter of course. Adjudicative bodies deal with evidentiary and procedural questions in order to dispose of the cases brought before them. Questions of evidence and procedure are of course questions of law. This suggests that since Parliament gave the Appeal Board an adjudicative function, it must have impliedly intended for it to answer these general questions of law.
[17] In addition to answering questions of law inherent to an adjudicative body, a section 21 Appeal Board is charged with ensuring that public service appointments are made in accordance with the merit principle. Selection on the basis of merit requires the application of a principle of law, namely the merit principle. This principle is not a list of specific criteria applicable in the same way in all circumstances. Rather, it is an abstract legal concept. It is not, therefore, a question of fact but instead requires the application of a legal principle to the facts of a given case. As this Court recently stated in Boucher v. Canada (Attorney General)51, hearing an appeal from an appointment "involves an issue of law as to the requirements of the merit principle and we therefore consider that the PSCAB"s decision to confirm that process equally involved a conclusion of law."52 Furthermore, this Court in Tiefenbrunner v. Canada (Attorney General)53 held that a section 21 Appeal Board made an error of law in deciding whether a particular appointment was made according to the merit principle. It is only logical that if a section 21 Appeal Board made an error of law, they must have first answered a question of law.
[18] The merit principle is contained in section 10 of the PSEA. In Cooper, La Forest J. stated that an administrative body"s power to interpret and apply its enabling statute does not mean it has jurisdiction to address general questions of law. Mr. Justice La Forest was clear, however, that he was referring to the jurisdictional clauses in an enabling statue. Specifically he concluded that "[t]he power to refuse to accept a complaint, or to turn down an application, or to refuse to do one of the countless duties that administrative bodies are charged with, does not amount to a power to determine questions of law."54 Section 10, which contains the merit principle, is not a jurisdictional clause and therefore may be used as proof of the Board"s jurisdiction over general questions of law.
[19] Finally, several practical considerations weigh in favour of granting jurisdiction in this case. Mr. Justice La Forest stated that "practical considerations may be of assistance in determining the intention of Parliament, but they are not determinative."55 In this case, the relevant practical considerations include the fact that there is no appeal route from a decision of a section 21 appeal board. Its decisions are only subject to judicial review by the Federal Court. This is different from the Human Rights Commission at issue in Cooper whose determinations had no legal effect except to forward a complaint to the Tribunal for decision.
[20] A second practical consideration, which operates in favour granting the Board jurisdiction, is that determining whether a breach of the Charter has occurred requires knowledge both of Charter jurisprudence and of the facts at issue in the case. The Board is in the best position to evaluate the facts of a case to see if a Charter breach has occurred. Once the Board has made its determination the Federal Court is authorized to review its findings of law on a standard of correctness to ensure that the Charter has been applied correctly. However, the Court"s task will be made easier if the Board has made the necessary findings of fact relevant to determining whether a Charter breach has occurred.
[21] This brings me to my final point in favour of granting jurisdiction to the Board, namely, efficiency. If the position of my colleagues in this case is followed, complainants before this Board would have to traverse a long road in order to have their cases resolved. For example, a situation might arise where a complainant brings a Charter claim before the Appeal Board and the Board finds that it lacks jurisdiction. The complainant would then have to seek a declaration of invalidity in the Federal Court Trial Division. If the Trial Division grants the declaration, the matter returns to the Appeal Board. If the Appeal Board then hears the case and finds for the complainant, the Respondent might apply to the Federal Court for judicial review. Had the Appeal Board been able to deal with the Charter question, it could have determined the entire matter thus requiring only one hearing at the Federal Court in which all matters could be dealt with. This process would have the benefit of allowing the Appeal Board to make the necessary findings of fact to assess the Charter claim. Such findings of fact would then be before the Federal Court of Appeal if the case is appealed. The Court could then rely upon the findings of fact when assessing whether the Charter was correctly applied. This efficiency concern is particularly important for the complainant for whom the Appeal Board is a faster and less expensive forum. It is in the interests of accessibility to justice generally that litigants are able to bring Charter claims in the most efficient manner possible.
Conclusion
[22] For the reasons given above, I find that the Appeal Board in this case has jurisdiction to determine the constitutional validity of section 27 of the Regulations. I would allow the appeal. Given that the Appellant has raised an issue of general importance and the fact that he was successful in the first instance, I am of the opinion that he should have his costs, if successful, and that no costs ought to be awarded against him should he be unsuccessful in this matter.
"F.J. McDonald"
McDonald J.A.
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1 R.S.C. 1985, c. P-33.
2 Canada Gazette Part II, vol. 127, No. 12 at 2653.
3 Part I of the Constitution Act, 1982, Schedule B. Canada Act 1982, 1982, c. 11 (U.K.).
4 Appeal Board decision, Appeal Book, vol. III at 161.
5 Perera v. CIDA, November 22, 1994, file no. 91-IDA-0972R, Appeal Book, vol. II at 7.
6 S.C. 1988, c. 38.
7 The appellant also gave notice of a constitutional question prior to the hearing of the appeal and prior to this judicial review before Rouleau J. In both instances, it is no longer asked that section 27 "be declared of no force or effect," but that the section be held invalid pursuant to section 52(1) of the Constitution Act . The notice before the appeal board was on consent, to be construed as being to the same effect despite its wording. (Affidavit of Ranjit Perera, Appeal Book, vol. I at 5).
8 Perera et al v. Canada, [1998] 3 F.C. 381 (C.A.).
9 Order, Appeal Book, vol. I at 102-104.
10 Cooper, supra at 888 quoting Cuddy Chicks Ltd. v. ORLB, [1991] 2 S.C.R. 5 at 14.
11 Cooper, supra at 909.
12 Pratte J.A. and McGuigan J.A. concurring.
13 Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562 (C.A.).
14 See also: Décary J.A. in Blashford at 59-60; Brown v. Public Service Commission, [1975] F.C. 345 (C.A.) at 357-358; Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (F.C.A.) at 115-116; Delanoy, supra note 13 at 568-569; Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A.) at 382.
15 Appeal board decision, supra note 4 at 159-160. I note that as these requirements were those of the employer-department and concerned basic eligibility, nothing turns on the fact that the Commission approved them since the Commission had no choice under the Act but to accept them. (Blashford, supra; see also Viola, supra.)
16 S.C. 1988, c. 38.
17 Viola, supra at 377.
18 Ibid.
19 Viola, supra at 385.
20 Appellant"s memorandum of fact and law at para. 80 e).
21 Pursuant to para. 21(2)(a) of the Act.
22 Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), supra note 10 at 14. See also Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.
23 The appeal board, in its lengthy reasons, did not address this step and immediately turned to the question whether it had jurisdiction under its enabling statute to deal with the constitutional issue. (See appeal board decision, supra note 4 at 182.)
24 See Caldwell et al. v. Public Service Commission et al., 25 N.R. 458 (C.A.) per Pratte J.A. at 459; Bambrough v. Public Service Commission, supra note 14, per Le Dain J.A. at 115, 121-122.
25 See original appeal letter dated February 26, 1996, as reiterated by the second appeal letter dated May 17, 1996. (Appeal Book, vol. III at 294 and 449 respectively.), and the notice of constitutional question filed prior to the hearing before the appeal board. See also the subsequent notices filed before the Federal Court, Trial Division and the Appeal Division. (Appeal Book, vol. II at 86 and vol. I at 43. The notice before the Appeal Division was filed after the Appeal Books had been constituted.)
26 Viola, supra at 384.
27 Memorandum to file by the Chairman of the appeal board dated May 1, 1996, page 1, bullet 5. (Appeal Book, vol. III at 463.)
28 See the notice of constitutional question before the appeal board under the heading "material facts giving rise to this constitutional question". See also the subsequent notices under the same heading. (supra note 26).
29 Letter of appeal dated May 17, 1996, supra note 25.
30 Bambrough, supra, note 14 at 117 and 118.
31 Blashford, supra, at 58.
32 Bambrough, supra, as quoted at paragraph [34].
33 Appeal Book, vol. III, at 195.
34 Ibid.
35 Ibid.
36 Ibid., at 252.
37 Ibid., at 295.
38 Ibid., at 253.
39 Ibid., at 304.
40 [1996] 3 S.C.R. 854 at para. 69.
41 See for example: J.M. Evans, "Administrative Tribunals and Charter Challenges: Jurisdiction, Discretion and Relief" (1997) 10 C.J.A.L.P. 356; J. McMillan, "Tribunals and the Charter: The Search for Implied Jurisdiction " A Case Comment on Cooper v. Canada (Human Rights Commission)" (1998) 32:2 U.B.C. Law Review 365; M.C. Crane, "Administrative Tribunals, Charter Challenges, and the "Web of Institutional Relationships"" (1998) 61 Sask. L.R. 495.
42 Cooper, supra note 1 at para.45.
43 Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, as cited in Cooper supra note 1 at para. 46.
44 Appeal Book, Volume III, at 449. "Letter from Dr. Perera appealing the selection."
45 [1983] 1 F.C. 636 at 641.
46 PSEA subsection 21(2) "The Commission, on being notified of the decision of the Board on an inquiry into an appointment conducted pursuant to section 1, shall, in accordance with the decision, (a) if the appointment has been made, confirm or revoke the appointment; or if the appointment has not been made make or not make the appointment."
47 Cooper, supra note 1 at para.46.
48 [1991] 2 S.C.R. 5 at 14.
49 Black" s Law Dictionary, 5th ed., s.v. "adjudicative hearing".
50 Cooper, supra note 1 at para. 58.
51 [2000] F.C.J. No. 86 (C.A.), online: QL (FCJ).
52 Ibid. at para. 7.
53 [1992] F.C.J. No. 1021 (C.A.), online: QL (FCJ).
54 Cooper supra note 1 at para. 55.
55 Cooper supra note 1 at para. 59.
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