Date: 20051206
Docket: A-306-04
Citation: 2005 FCA 411
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
HENSLEY ORIJI
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
MALONE J.A.
[1] This is an appeal from an order by Mosley J. (the Applications Judge) dated May 6, 2004, (2004 FC 666). The Applications Judge reviewed a decision of a Public Service Commission (PSC) Investigator (the Investigator), into an allegation that the Department of Public Works and Government Services (Public Works) made and then improperly rescinded an offer of employment to Mr. Oriji (the appellant).
[2] This resulted from a second investigation into the complaint after the finding of the first Investigator that the complaint was not justified was set aside by Mr. Justice Gibson of the Federal Court on the ground that the first Investigator had made an error of law and the procedure followed lacked fairness.
[3] The second investigation was conducted by another officer who concluded on the evidence that the appellant's complaint was unfounded since no offer of employment had been made in accordance with the law.
[4] The Applications Judge whose decision is now before us dismissed the application for judicial review of the second Investigator's decision, holding that the Investigator did not err in finding that no offer of employment had ever been made to the appellant.
[5] The parties agree that the Applications Judge correctly identified and applied the proper standard of review to the decision of the Investigator.
[6] Therefore, the issue on this appeal is whether the Applications Judge made a palpable and overriding error of fact or an error of law in dismissing the appellant's application for judicial review of the second Investigator's decision.
[7] The appellant raised before us the same grounds as were raised before the Applications Judge.
[8] The first issue is whether Public Works made a valid offer of employment to the appellant.
[9] Mosley J. noted that the CR-04 position for which the appellant competed was mandatory bilingual (see Request for Recruitment, Appeal Book, Vol. II, page 193; Staffing Request, Appeal Book, Vol. II, page 221). Mr. Oriji did not satisfy the mandatory bilingual requirement for the CR-04 position and Public Works could only have established an eligibility list after he had satisfied the language requirement. The e-mail correspondence between Public Works officials dated March 8, 2001 confirms this fact:
Please take the necessary arrangement to send MR. HENSLEY C. ORIJI on language training.
SSD is ready to offer him a term position effective April 2, 2001 or as soon as he meets the language requirement for the bilingual position (see E-mail from M. Diotte to M. Desjardins, Appeal book, Vol. II, page 261).
[10] The Applications Judge then reviewed the appropriate legislation. In particular he noted subsections 17 (1) and 17 (1.1) of the Public Service Employment Act, R.S.C. 1985, c P-33 (the Act) and subsection 15 (1) of Public Service Employment Regulations, 2000, SOR/2000 (the Regulations):
| 17. (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligibility lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.
17. (1.1) A candidate may be placed on an eligibility list while it is being determined if the candidate meets the security, reliability and medical conditions of employment established by the Treasury Board.
15. (1) If an eligibility list has been established for a position, an appointment to the position must be made according to the list, unless it has been exhausted or has expired, before an appointment shall be made as a result of any other process of personnel selection. (emphasis added)
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17. (1) Parmi les candidats qualifiés à un concours, la Commission sélectionne ceux qui occupent les premiers rangs et les inscrit sur une ou plusieurs listes, dites listes d'admissibilité, selon le nombre de vacances auxquelles elle envisage de pourvoir dans l'immédiat ou plus tard.
17. (1.1) Un candidat peut être inscrit sur une liste d'admissibilité pendant la vérification de la conformité de son cas aux conditions d'emploi établies par le Conseil du Trésor en matière de sécurité, de fiabilité ou médicale.
15. (1) Si une liste d'admissibilité a été établie pour un poste, toute nomination à ce poste doit être faite d'après cette liste à moins que celle-ci soit épuisée ou expirée, avant qu'une nomination soit faite selon un autre mode de sélection. (non-souligné à l'originale)
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[11] Mosley J. also referred to the case of [1983] 1 S.C.R. 582">Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582 at 597, which stands for the following proposition. Only after the appellant had demonstrated that he met all the requirements for the CR-04 position, including the mandatory language requirement and the satisfactory reference check, could he have been placed on an eligibility list and ranked according to merit.
[12] Subsection 17 (1.1), while allowing a candidate to be placed on an eligibility list pending the verification of the security, reliability and medical requirements, does not mention that a candidate may be placed on an eligibility list pending the outcome of language testing. Accordingly, Mosley J. did not err in stating that such an omission demonstrates that language proficiency is integral to the position itself and affects the candidate's ultimate qualification for the position. In my view, based on the evidence and the case law, the Applications Judge was correct not to have disturbed the Investigator's conclusion that no offer of employment had been made.
[13] The appellant argued that Gibson J., in the first judicial review, affirmed that he was in fact given a valid offer of employment. In allowing the first judicial review, Gibson J. merely concluded that the first Investigator erred in law in her interpretation of section 22 of the Act, in that an instrument of appointment was a necessary precondition for an offer of appointment to be enforceable. The correct interpretation of section 22, according to Gibson J., is that an instrument of appointment is determinative of the effective date of employment rather than of the enforceability of an employment arrangement based on an offer, whether verbal or written.
[14] The second issue is whether Ms. Dumouchel the public servant ultimately appointed to the CR-04 position was entitled to a priority appointment.
[15] In the course of the fact-finding meetings before the Investigator, Public Works conceded that, at the time of her acting appointment to the CR-04 position, Ms. Dumouchel, who held a substantive CR-03 position, did not meet the definition of priority employee because she only received the formal written notice of her lay-off a month after her acting appointment to the CR-04 position. Since Ms. Dumouchel had not received notice in writing of her surplus status until after she had begun working in the CR-04 position, and since the appointment to the position constituted a promotion, Mosley J. correctly held that Ms. Dumouchel was not entitled to be appointed as a priority employee due to sections 35 and 40 of the Regulations that set out the requirements for priority appointments.
[16] The third issue is whether the appointment of Ms. Dumouchel negatively impacted the appellant's appointment.
[17] The Investigator found, and the Applications Judge agreed, that Ms. Dumouchel was appointed to the CR-04 position only in an acting capacity, pursuant to Section 10 (1) of the Act and the definition of "Acting Appointment" in the Regulations which reads:
| "acting appointment" means when an employee temporarily performs the duties of another position, if the performance of those duties would have constituted a promotion had the employee been appointed to the position. (nomination intérimaire);
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« nomination intérimaire » Le fait pour un fonctionnaire d'exercer temporairement les fonctions d'un autre poste, dans le cas où l'exercice de ces fonctions aurait constitué une promotion, si ce fonctionnaire avait été nommé à ce poste. (acting appointment)
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[18] Justice Mosley correctly analyzed the applicable legislation and evidence and found that Ms. Dumouchel was validly appointed to the CR-04 position.
[19] Any prior mischaracterization of Ms. Dumouchel's appointment as "priority" did not have an impact on the Appellant because Ms. Dumouchel validly received an "acting appointment".
[20] The Appellant also argued that he had not been given the opportunity to make a full case before the Investigator.
[21] Upon reviewing the record before him, the Applications Judge rejected these allegations as unsubstantiated and found that the Appellant had had full access to all the materials relevant to his complaint.
[22] The Appellant has failed to establish that the Applications Judge made any palpable or overriding error of fact or any error of law.
[23] Accordingly, the appeal will be dismissed with costs.
"B. Malone"
"I agree
J.Richard
C.J."
"I agree
Gilles Létourneau
J.A."
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