Canada ( Attorney General ) v. Laidlaw
T-692-96
Rothstein J.
9/4/97
13 pp.
Application for judicial review of Appeal Board's decision under Public Service Employment Act-Respondents holding position of "unit head" in Halifax office of Revenue Canada-Position treated as obsolete by Revenue Canada, replaced with new "team leader/co-ordinator" position-Competitions held under Act, s. 10(1) to staff position-Respondents unsuccessful in competitions-Appeal Board determining position not new-Allowing respondents' appeals-Revenue Canada categorizing all jobs into three categories-For jobs categorized as review and update, no staffing required-For jobs to be reclassified with incumbents already in positions, staffing action taken under Act, s. 10(2)-For jobs categorized as new, staffing action taken under Act, s. 10(1)-Appeal Board has to make objective factual determination of whether newly designated job new or has merely undergone changes of minor nature not requiring new qualifications on part of incumbent-Issue whether position of team leader/co-ordinator new position one to be determined objectively as matter of fact by Board-Change in classification of position not depriving Board of jurisdiction to determine whether, in reorganization, position new-Board's finding team leader/ coordinator position not new not affecting classification decision, therefore within Board's jurisdiction-Finding based on evidence before it-No reasonable basis for assertion Board's finding erroneous, made in perverse, capricious manner, without regard to material before it-Act, s. 10(2), Regulations, s. 4(2) not to be construed as mandatory-Employment should be based on merit tested by competitions-Object of Act to ensure best person be placed in every available position-Parliament, Governor in Council intended that, in circumstances of Regulations, s. 4(2)(b)(ii), government has option of not holding competitions-Revenue Canada having discretion to staff positions by competition under s. 10(1) even where positions might be staffed on basis of competency under Act, s. 10(2), Regulations, s. 4(2)-Revenue Canada's discretion not unfettered, must be exercised in good faith, in accordance with principles of natural justice-Matter remitted to Appeal Board for redetermination-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10-Public Service Employment Regulations, 1993, SOR/93-286, s. 4(2).