Alongi-Peluso v. Canada ( Treasury Board )
T-2909-93
Rouleau J.
20/1/95
7 pp.
Application to set aside Public Service Commission Appeal Board decision declining to hear merits of applicants' appeal -- Applicants employed with Canada Employment and Immigration Commission -- Eligibility list for position of Expulsion Officer established by closed competition -- Appeal against selections for appointment, based on Selection Board improperly including items in expected answer to "knowledge" question allowed -- After revision of marking of question, applicants no longer qualified -- Department taking corrective measures to remove applicants' names from eligibility list -- As applicants performing duties on acting basis, status altered significantly -- Applicants, intervenors in first appeal, appealing revised appointments -- Board holding Public Service Employment Act, s. 21(4) limiting appeal brought after corrective measures taken to issues on merit -- Since issues raised in second appeal could have been raised in first, holding doctrine of issue estoppel applied to bar Appeal Board's jurisdiction to make determination on merits -- Application allowed -- No issue estoppel-(1) Question posed in second appeal not same as in first -- Issue in first appeal whether "knowledge" question properly scored -- Issue in second appeal whether merit principle contravened by improper grading of applicants on individual basis resulting in removal of names from list -- Applicants not obliged to raise that issue in first appeal as issue not arising until corrective measures taken by Department, resulting in removal of applicants' names from list -- No negligence, inadvertence, accident, or failure to exercise due diligence in failure to raise issue in first appeal -- (2) Judicial decision said to create estoppel not final -- Final decision of first Appeal Board that knowledge question incorrectly marked -- Corrective measures, taken in accordance with PSEA, s. 21(3), result of exercise of Commission's discretion, not of Appeal Board's final decision -- Even if s. 21(4) applied, Appeal Board had jurisdiction to hear second appeal based on ground corrective measures taken by Commission following first appeal and subsequent removal of applicants from eligibility list contravened merit principle -- Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21 (as am. by S.C. 1992, c. 54, s. 16).