Digests

Fournier v. Canada (Attorney General)

T-681-99

Lemieux J.

30/8/00

22 pp.

Application for judicial review of decision by president of Public Service Commission appeal board following appeal pursuant to Public Service Employment Act, s. 21--Appeal brought by plaintiff concerning appointment after reclassification of positions of four district managers of Measures Canada in Quebec--Issue whether merit principle observed in 1995 and 1996 when four managers assigned to their positions--Plaintiff alleged new positions created in 1995 and four managers became incumbents thereof regardless of merit principle--Whether appeal board committed reviewable error by refusing to consider in its analysis proposed appointments made in February 1998 following reclassification of positions in question, nature of positions created at time of administrative reorganization in June 1995 and how managers became incumbents of those positions--Applicable standard of review, set out in Federal Court Act, s. 18.1(4) that of correct decision--Public Service Employment Act, s. 10 notes that any appointments to Public Service shall be based on selection according to merit--Appeal board had power to observe whether application of standards of competence laid down by Commission done in accordance with merit principle--Essential to application of merit principle to ensure appointments made initially, before positions in question reclassified under Regulations, s. 4(2), made in accordance with requirements laid down in Act, s. 10, as result of competition or application of statement of qualifications--No one improperly appointed to position in federal Public Service could benefit from undue advantage in subsequent selection process--No federal organization can circumvent requirement to ensure merit principle applied, by appointing public servant after reclassification of position, where public servant irregularly appointed to reclassified position--For proper assessment of appointments essential to go back to actual creation of those positions, since creation and reclassification integral parts of same process, and to verify whether appointments made at that time complied with merit principle--Appeal Board made reviewable error as failed to exercise jurisdiction in assessing candidacies for desired positions by refusing to take into account actual nature of new positions created in June 1995 and to consider how managers became their incumbents--Application allowed--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10), 21 (am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Public Service Employment Regulations, SOR/93-286, s. 4(2).