Roberts v. Canada (Attorney General), docket A-407-97

Date: 19990309

Docket: A-407-97

(T-2046-95)

CORAM:      STRAYER J.A.

         DÉCARY J.A.

         ROTHSTEIN J.A.

BETWEEN:

     SHIRLEY E. ROBERTS and MARISA G. VOLPE

     Appellants

     (Applicants)

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     (Respondent)

     Heard at Ottawa (Ontario) on Tuesday, March 9, 1999.

     Judgment delivered from the Bench on March 9, 1999.

REASONS FOR JUDGMENT

OF THE COURT DELIVERED BY:      DÉCARY J.A.

Date: 19990309

Docket: A-407-97

(T-2046-95)

CORAM:      STRAYER J.A.

         DÉCARY J.A.

         ROTHSTEIN J.A.

BETWEEN:

     SHIRLEY E. ROBERTS and MARISA G. VOLPE

     Appellants

     (Applicants)

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     (Respondent)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa (Ontario)

     on Tuesday, March 9, 1999.)

DÉCARY J.A.

[1]      The issue in this appeal is whether the assignments by a department of two employees to other positions in the department were "appointments" within the meaning of section 21 of the Public Service Employment Act¹ ("the Act"). It is conceded that the changes in the functions to be performed by the employees in those other positions were not of such a significant or substantial nature as to call for additional or specific qualifications requiring evaluation², that the assignments did not result in a promotion and that the employees continued to receive the same salary. The assignments were for a period of six months.

[2]      The assignments were challenged by two unsuccessful candidates ("the appellants") who filed an appeal pursuant to section 21 of the Act. The Public Service Commission Appeal Board ("the Appeal Board") declined jurisdiction on the basis that the assignments at issue did not amount to appointments and were therefore not open to challenge under that section of the Act. Mr. Justice Denault dismissed the application for judicial review filed by the appellants³, who then appealed to this Court.

[3]      The thrust of the appellants' submissions is that unless a department uses the process of deployment defined in section 34.1 of the Act or the process of acting appointment defined in subsection 2(1) of the Public Service Employment Regulations, 1993⁴ ("the Regulations"), any lateral move of an employee within a department through the process of assignment is an appointment subject to a right of appeal.

[4]      At this point, it is worth quoting the text of section 34.1 of the Act and subsection 2(1) of the Regulations:

Public Service Employment Act      PART III.1      DEPLOYMENT      Right to Deploy    34.1 (1) Except as provided in this Act or in any other Act, a deputy head has the exclusive right and authority to make deployments to or within that part of the Public Service over which the deputy head has jurisdiction.    (2) Deployments may be made within occupational groups and, when authorized by the regulations of the Commission, between occupational groups.    (3) Unless some other period is specified, a deployment is for an indeterminate period.

Loi sur l'emploi dans la fonction publique      PARTIE III.1      MUTATIONS      Pouvoirs    34.1 (1) Sauf disposition contraire de la présente loi ou de toute autre loi, l'administrateur général a le droit exclusif de muter au secteur relevant de sa compétence des fonctionnaires en provenance de l'extérieur ou de procéder à des mutations au sein de ce secteur.    (2) Les mutations peuvent s'effectuer à l'intérieur des groupes professionnels et, dans les cas prévus par règlement de la Commission, entre ces groupes.    (3) Sauf précision contraire, les mutations se font pour des périodes indéterminées.

Public Service Employment Regulations, 1993      Interpretation 2. (1) In these Regulations, [...] "acting appointment" means the assignment to an employee of the duties of another position for a temporary period, where the assignment of the duties would have constituted a promotion had the employee been appointed to the position; (nomination intérimaire)

Règlement sur l'emploi dans la fonction      publique (1993)      Définitions 2. (1) Les définitions qui suivent s'appliquent au présent règlement. [...] "nomination intérimaire"    L'attribution temporaire à un fonctionnaire des fonctions d'un autre poste, dans les cas où une telle attribution de fonctions aurait constitué une promotion si le fonctionnaire avait été nommé au poste. (acting appointment)

[5]      It is true that the process of assignment is nowhere defined in the Act or in the Regulations, but there is not doubt in our mind that such process is a legitimate and inherent management device already recognized by the courts and implicitly affirmed in amendments made to the Act and the Regulations in 1993. It goes without saying, in our view, that a department may move an employee from one position to another, on a temporary basis, without having to "deploy" him. The decisions of this Court rendered prior to the decisions of the Supreme Court of Canada in Brault and in Doré⁵ and prior to the 1993 amendments must be relied upon with caution. If no right of appeal is granted where an employee is deployed⁶, i.e. where an employee is moved from one position to another and gains incumbency in the position to which he is deployed and therefore assumes the classification level of the other position, a fortiori can it be assumed that no right of appeal is granted where an employee is merely assigned, i.e. where he is moved temporarily from one position to another, does not gain incumbency in the position to which he is assigned, does not assume the classification level of that other position and is expected to return to the original position.

[6]      At the end of the day, an appeal board must ask itself whether in staffing a position on a temporary basis, the administration has exceeded the limits of reasonable flexibility and has in fact attempted to avoid observance of the merit principle. The factors to be examined by the Appeal Board are particularly those defined in Brault and in Doré⁷, that is:     i) is the assignment of such significant and indefinite duration to be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process and     ii) has there been such a significant or substantial change in functions requiring additional or special qualifications such that the assignment is tantamount to new position.

[7]      In the case at bar, on the evidence, there simply cannot be any suggestion that the "assignments" at issue are anything other than typical, ordinary assignments which bear none of the characteristics attributed by the case law to disguised appointments. As noted by Mahoney J.A. in Keenan v. Canada (Public Service Commission)⁸, the jurisprudence makes it abundantly clear that whether an assignment is, or is not, an appointment depends on the particular circumstances of the case.

[8]      Finally, counsel for the appellants has suggested that the mere fact that a closed competition was held is sufficient to transform the assignment into an appointment. That argument flies in the face of the wording of subsection 21(1) of the Act.

[9]      The appeal will be dismissed with costs.

     "Robert Décary"

     J.A.

__________________

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

²      See Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489 at 501-502. See, also, Doré v. Canada, [1987] 2 S.C.R. 503.

³      Reported as Roberts and Volpe v. Canada (Attorney General) (1997), 131 F.T.R. 1 (F.C.T.D.).

⁴      SOR/93-286.

⁵      Supra note 2.

⁶      See, s. 34.3 of the Act.

⁷      Supra, note 2.

⁸      [1989] 3 F.C. 643 (F.C.A.).