Digests

Davies v. Canada (Attorney General)

A-114-04

2005 FCA 41, Richard C.J.

28/1/05

16 pp.

Appeal from Federal Court order ((2004), 245 F.T.R. 118) dismissing appellant's application for judicial review of decision of Public Service Commission Appeal Board-- Appeal Board maintaining selection board's assessment of candidates based on merit principle, reasonable connection existed between qualifications established by employer and testing method utilized by selection board--Whether applications Judge (1) applied appropriate standards of review; (2) erred in concluding Appeal Board lacked jurisdiction regarding knowledge thresholds; (3) erred in concluding Appeal Board dealt appropriately with all of appellant's allegations--(1) Applications Judge required to apply pragmatic and functional approach to determine appropriate standard of review of Appeal Board's decision-- Rather than performing own pragmatic and functional analysis, applications Judge relied solely on prior case law to determine appropriate standard of review neither of which applying pragmatic, functional approach--Therefore appropriate for Court to apply pragmatic and functional approach to determine correct standard of review and, if necessary, to assess Appeal Board's decision on that basis-- When statute has strong policy aspects, more deferential approach required--Purpose of right of appeal created by Public Service Employment Act (PSEA), s. 21 not to protect appellant's rights, but to prevent appointment contrary to merit principle--Factor suggesting deference should be shown to Appeal Board's decision--Absence of privative clause in conjunction with explicit provision under Act, s. 21.1 for Federal Court, Federal Court of Appeal to review appeal board decisions suggesting less deferential standard of review-- Relative expertise of Appeal Board regarding selection process compared with that of applications Judge--Recourse officers acting as appeal boards expected to have significant experience evaluating testing methods used by selection boards, therefore to be more familiar with what constitutes reasonable testing method than applications Judge--On this issue, therefore, Appeal Board having more expertise than applications Judge--Recourse officer serving as appeal board not considered highly specialized decision maker in relation to legal questions concerning PSEA--Appeal Board's decision relative to jurisdiction should have been reviewed by applications Judge on less deferential standard--On basis of pragmatic and functional analysis, appropriate standard of review of Appeal Board's decision on questions relating to selection process reasonableness--For questions relating to jurisdiction, appropriate standard correctness--Applications Judge correct in relying on these standards--(2) Appeal Board having no jurisdiction to review qualifications established by department--Two basic principles governing hiring in public service: appointments must be based on merit as determined by Public Service Commission and employer has exclusive responsibility, subject to PSEA, s. 12.1, of defining position, establishing necessary qualifications for that position--Under PSEA, s. 10, Commission empowered to select, appoint candidate best qualified for position, according to merit principle--"Merit" meaning best person possible will be appointed to position, having regard to nature of service to be performed--Only by virtue of PSEA, s. 12.1 may Commission review qualifications themselves--Review of qualifications under s. 12.1 conducted by Recourse Officer, not appeal board--Must take place before closing of competition-- Appeal board having "no say with respect to the qualifications which an employer-department considers necessary or desirable"--Despite appellant's confusing use of term "knowledge threshold", Appeal Board correctly determined jurisdiction did not extend to reviewing qualifications established by department--(3) No merit to appellant's claim Appeal Board ignored any of her allegations--Appeal Board properly turning mind to all allegations put forward by appellant--Applications Judge not committing palpable, overriding error by finding appellant failed to establish Appeal Board committed reviewable error--Appeal dismissed-- Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10; 2003, c. 22, s. 206(g)(E)), 12.1 (as enacted by S.C. 1992, c. 54, s. 11), 21(as am. idem, s. 16; S.C. 1996, c. 18, s. 15; 2003, c. 22, ss. 197, 206(l)(E)), 21.1 (as enacted by S.C. 1992, c. 54, s. 16; 2002, c. 8, s. 164; 2003, c. 22, ss. 198, 269).