Johnson v. Canada ( Attorney General )
T-601-97
Hugessen J.
16/2/98
13 pp.
Judicial review of Appeal Board's decision-First appeal allowed on basis Selection Board not assessing significant knowledge requirements for job-Public Service Commission (PSC) of view some of requisite knowledge already indirectly assessed, directing Selection Board to conduct further assessment of candidates with respect to only some aspects of required knowledge-As result of that assessment, new eligibility list issued-Substantially same as first list-Second appeal allowed on ground not open to PSC to decide, contrary to findings of first Appeal Board, that part of requisite knowledge already assessed and that new assessment would be with respect to only some aspects of required knowledge-PSC ordered further assessment of those aspects of knowledge not directly assessed following first Appeal Board decision-Resulting in new eligibility list listing same four candidates in same order-Third appeal dismissed on ground Public Service Employment Act, s. 21(3), (4) precluding applicants from raising on third appeal any ground not clearly related to corrective measures taken following second appeal-S. 21(3) providing where appeal board determining defect in selection process, Commission may take such measures as considers necessary to remedy defect-S. 21(4) providing where person appointed as result of such measures, appeal against that appointment may be taken under s. 21(1) only on ground measures so taken not resulting in selection for appointment according to merit-On hearing of third appeal, applicants attempting to raise three entirely new arguments-Textually applicants alleging any breach of merit principle may be put in issue on second or subsequent appeal since, if shown best candidate not chosen, corrective measures not resulting in selection according to merit-Contextually applicants submitting pool of possible candidates significantly enlarged, thus requiring holding of new competition where Appeal Board finding original competition to be defective-Application dismissed-While English version of s. 21(4) ambiguous, French text leaving no doubt only appeal based on allegation corrective measures contrary to merit principle permitted in such circumstances-As consistent with one view of English text, common meaning rule requiring adoption-Focus of s. 21(3) defects, measures taken to correct them-Further appeal under s. 21(4) limited to impact of those measures on those defects-New grounds proposed by applicants before third Appeal Board not meeting test-As to contextual arguments, merit principle requiring appointment of most qualified candidate-Qualifications not static-"Pool" of eligible candidates fluid-Merit principle not requiring every appointment be kept constantly under review in light of changing circumstances-Imperatives of merit principle should only come into play periodically and from time to time as appointments, promotions, reductions in force required-Question not whether merit principle respected, but at what moment in time respective merits of persons concerned assessed-Ss. 21(3), (4) simply directing when Commission deciding to take corrective measures rather than to go back to beginning and start new competition, relevant time for assessment of merit of candidates remaining same-On second appeal, corrective measures assessed for conformity with merit principle, but all other matters, whether or not raised on first appeal, finished-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21(as am. by S.C. 1992, c. 54, s. 16).