Digests

Zilberman v. Canada (Attorney General)

T-1215-99

Reed J.

6/6/00

9 pp.

Judicial review of Public Service Commission Appeal Board's dismissal of applicant's appeal of selections made for appointment to position of Team Coordinator, Collections (PM-04) by Revenue Canada--Appointments made pursuant to closed "relative merit" competition wherein candidates assessed on basis of common tests given to all--Applicant arguing Revenue Canada required to appoint him without competition (on basis of "individual merit") because positions essentially same as position he had held prior to administrative consolidation--As result of consolidation of Tax Branch, Excise/GST Branch of Revenue Canada, applicant's position as District Collection Manager declared obsolete--Also as result of consolidation, Revenue Canada staffing number of Team Coordinator, Collections positions--On two previous occasions Appeal Board finding differences between positions of District Collection Manager, Team Coordinator, Collections--Appeal Board herein holding no need to assess argument applicant's previous position substantially same as position being staffed because within Department's discretion to choose to staff latter position using either competitive process or individual merit process--Application dismissed--Public Service Employment Act, s. 10(2), Public Service Employment Regulations, s. 4(2) providing person may be appointed without competition in certain circumstances i.e. when position reclassification of existing position--Legislation not saying appointment by individual merit shall be used in those circumstances--Evidence not establishing Revenue Canada's decision to proceed by competitive selection process arbitrary, contrary to policy adopted with respect to filling of positions in question--Act to amend the Department of National Revenue Act and to amend certain other Acts in consequence thereof, s. 4 preserving status quo for employees at date of consolidation--Not preventing Department from reorganizing for all time thereafter--Issue estoppel precluding applicant from appealing present Appeal Board decision--In order to proceed to appoint on basis of "individual merit", position being staffed must be employee's reclassified position--Applicant's position declared obsolete as result of consolidation--Team Coordinator position not reclassification of District Collection Manager position as result of consolidation--Appeal Board having on at least two occasions determined District Collection Manager (Excise Tax Branch) position not substantially same, similar to Team Coordinator, Collections position--Additionally applicant not holding position of District Collection Manager at date of staffing process--Application dismissed--Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10(2) (as am. by S.C. 1992, c. 54, s. 10)--Public Service Employment Regulations, 1993, SOR/93-286, s. 4(2) (as am. by SOR/97-142, s. 2)--An Act to amend the Department of National Revenue Act and to amend certain other Acts in consequence thereof, S.C. 1994, c. 13, s. 4