McAuliffe v. Canada ( Attorney General )
T-2373-95
Dubé J.
12/2/97
8 pp.
Application to set aside Public Service Commission's (PSC) refusal to implement recommendations of Board of Inquiry-DND assessing 90 candidates to fill vacancies for Kitchen Helper positions at its premises in Kingston, Ontario-Complaints made to PSC regarding way in which candidates assessed-Despite finding of irregularities by on-site investigator, three eligibility lists established-Department conceding errors made in marking of candidates-Second assessment determining 22 of 24 individuals appointed still qualified, although not necessarily best candidates-In 1995 Board of Inquiry inviting all interested persons to present evidence, make representations-Finding serious flaws in assessment of candidates, recommending new assessment, appointment of top 24 candidates, revocation of appointments of anyone not in top 24-Commission instead adopting in-house recommendations, confirming appointments of those qualifying twice, considering on-the-job experience as valid criterion for selection-Complainants appearing before Board of Inquiry not given opportunity to make submissions to Commission-Application allowed-(1) Commission not observing basic principles of procedural fairness when failed to acquaint interested parties with case would have to meet and to provide them with opportunity to respond before deciding to disregard recommendations of Board of Inquiry-(2) PSEA, s. 10 requiring appointments to Public Service to be based on selection according to merit-Merit principle calling for selection of best qualified candidates-Familiarity with actual duties of position may provide candidates in place with unfair advantage-Risk selection process may not result in selection according to merit-Through implementation of corrective action confirming selections made on basis of two demonstrably flawed assessments, Commission failing to select according to merit-Those occupying positions pursuant to flawed assessments ought not to be retained merely because of satisfactory performance-Actual performance only showing qualify for job, not indicating best qualified in accordance with merit principle-PSC must undertake fresh assessment process-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 10.