A-38-74
In the matter of a decision rendered by the
Appeal Board established by the Public Service
Commission in connection with the appointment
following Competition 73-EXT-IV-203-A FS3
(Foreign Service 3) Department of External
Affairs
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, May 24, June 24 and July 4,
1974.
Judicial review—Public Service—Selection by other pro
cess than by competition—Appeal by unsuccessful candidate
to Appeal Board—Appeal rejected—Whether jurisdiction of
Appeal Board limited to specific selection process—Whether
Appeal Board should have considered "merit" when appli
cant prejudiced by prior reclassification and promotion poli-
cies—Whether Appeal Board should have considered appli
cant's fluency in other languages—Whether limitation re
sources of information—Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 10; Regulations, ss. 7, 13(2)—
Federal Court Act, s. 28.
The applicant applied to the Federal Court of Appeal
under section 28 of the Federal Court Act to review and set
aside the decision of an Appeal Board, established under
section 21 of the Public Service Employment Act, which
upheld the decision of a Selection Board.
There were eight positions at the FS-3 level vacant in the
Department of External Affairs and, rather than holding a
competition to fill them, a Selection Board was set up to
review the files of employees at the FS-2 level in the
Department who could qualify. The applicant was included
in a list of 21 qualified candidates but was not one of those
selected by the Selection Board. He appealed to an Appeal
Board which upheld the decision of the Selection Board. He
applied to review the decision of the Appeal Board on the
grounds that (1) the Appeal Board refused to exercise its
jurisdiction when it limited itself to consider only the results
of the specific selection process rather than reviewing the
promotion policies and the extent to which he had been
prejudiced by a previous reclassification of positions; (2) the
Appeal Board erred in law when it decided that the Selec
tion Board did not have to take into consideration a candi
date's ability to express himself in several languages when
ranking according to merit and in not setting aside the
selections since the Selection Board considered information
contained in documents that it ought not to have considered.
Held, the application is dismissed. With regard to (1),
what the Board decided, and correctly, was that its jurisdic
tion was limited to deciding whether the selection of the
eight employees to be promoted had been made properly
and that it ought not to take into consideration the effects of
earlier administrative decisions. With regard to (2) the selec
tion standards prescribed for positions in the FS-3 level
contained no specific requirement concerning knowledge of
languages so it was not necessary for the Selection Board to
make a special evaluation of each candidate's knowledge of
languages when ranking the candidates according to merit.
Section 7(4) does not impose any limitation on the sources
of information that are available to those who have the duty
of determining the relative merit of the qualified candidates.
APPLICATION for judicial review.
COUNSEL:
Brian A. Crane and Ovide Laflamme for
applicant.
Paul Evraire for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
PRATTE J.—This is a section 28 application to
set aside a decision rendered on an appeal under
section 21 of the Public Service Employment
Act.
In 1973, there were eight positions at the
FS-3 level vacant in the Department of External
Affairs. Instead of holding a competition to fill
them, it was decided to proceed by an "other
process of personnel selection" as contemplated
by section 10 of the Public Service Employment
Act and section 7 of the Public Service Employ
ment Regulations. The selection was to be made
among employees of the Department who had
been in positions at the FS-2 level for a mini
mum period. The applicant was such an
employee. A Selection Board was set up and,
after examining the candidates' files, it decided
that twenty-one of them, of which the applicant
was one, had the necessary qualifications to be
promoted from the FS-2 level to the FS-3 level.
Having done that, the Selection Board proceed
ed, on the basis of the information contained in
those same files, to draw up a list, in order of
merit, of the eight highest ranking candidates
and recommended that those eight employees
be promoted to positions at the FS-3 level.
The applicant, who was not one of the eight
successful candidates, instituted an appeal
under section 21 of the Public Service Employ
ment Act, which reads as follows:
21. Where a person is appointed or is about to be appoint
ed under this Act and the selection of the person for
appointment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate,
or
(b) without competition, every person whose opportunity
for advancement, in the opinion of the Commission, has
been prejudicially affected,
may, within such period as the Commission prescribes,
appeal against the appointment to a board established by the
Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their repre
sentatives, are given an opportunity of being heard, and
upon being notified of the board's decision on the inquiry
the Commission shall,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
The applicant's appeal was rejected and the
decision rejecting his appeal is the subject of
this section 28 application. The section 28
application is based on two main contentions,
viz: (a) the applicant says that the Appeal Board
refused to exercise its jurisdiction, and (b) the
applicant says that the Appeal Board erred in
law in making its decision.
1. The Contention that the Appeal Board
refused to exercise Jurisdiction
Counsel for the applicant made two submis
sions in support of this contention.
In the first place, it was submitted that the
Appeal Board wrongly decided that its jurisdic
tion was limited to considering the results of a
specific selection process. To test the validity of
this submission, the part of the Appeal Board's
decision upon which it is based must be put into
context.
Before the Appeal Board, the applicant had
claimed that the Selection Board should have
taken into account, in evaluating his "merit" in
relation to that of the other candidates, the
extent to which he had been prejudiced by a
reclassification of positions in the Department
of External Affairs that had taken place at an
earlier time. He had also claimed that the Selec
tion Board should have taken into account the
fact that the Department had changed its pro
motion policy some years earlier, and that
employees like the applicant who had many
years of experience had been prejudiced there
by because, while prior to the change, promo
tions in the Department were extremely slow, a
young employee could now pass through all the
levels much faster.
It was with reference to those arguments that
the Appeal Board found it appropriate to
include in its decision the passage upon which
the applicant based this submission. That pas
sage reads as follows:
An Appeal Board established under subsection 5(d) of the
Public Service Employment Act can only consider the
results of a specific selection process—in the instant case,
the November 1973 process—to determine whether such
process was conducted, and the results thereof arrived at, in
accordance with the merit principle.
The administrative repercussions of a general reclassifica-
tion of positions in the Department of External Affairs is
not relevant to the instant case.
When it is thus placed in context, this part of
the decision does not convey the meaning
attributed to it by counsel for the applicant. The
Appeal Board did not decide that its jurisdiction
was limited to considering the results of a selec
tion process without taking account of the way
in which the selection was made. What the
Board decided, and in my opinion decided cor
rectly, was that its jurisdiction was limited to
deciding whether the selection of the eight
employees to be promoted had been made prop
erly and that it ought not to take into consider
ation the effects of earlier administrative
decisions.
In the second place, it was submitted that the
Appeal Board had refused to exercise its juris
diction by rejecting the applicant's appeal with
out making a sufficient inquiry into the way in
which the Selection Board had evaluated the
merits of the respective candidates.
Before the Appeal Board, the applicant
claimed, so it seems, that the Selection Board
did not take into consideration either his years
of service or the fact that he speaks several
languages in addition to French and English.
The Appeal Board came to the conclusion, how
ever, that the Selection Board evaluated the
candidates in a manner that was not unreason
able in the circumstances. The Appeal Board
came to that conclusion after hearing the Chair
man of the Selection Board and after examining
the files on which the Selection Board had
based its judgment concerning the applicant and
the eighth successful candidate. Counsel for the
applicant submitted that the Appeal Board's
inquiry should have gone further. They submit
ted that the Appeal Board should have exam
ined the files of the seven other successful
candidates and, in addition, should have exam
ined the notes made by the members of the
Selection Board when they were evaluating the
applicant and the eight successful candidates.
Section 21 requires that a board be estab
lished "to conduct an inquiry". It follows that a
board established for an appeal under section 21
must conduct an inquiry to determine whether
the appellant's complaints are well founded. If
such a board does not conduct such an inquiry,
it will not have complied with the requirements
of section 21 and its decision will be subject to
being set aside as was the decision that was
under consideration in Cleary v. Public Service
Appeal Board'. On the other hand, an appeal
board's decision is not subject to attack merely
because it could have made a more thorough
inquiry than it did. An appeal board acting
under section 21 must make such inquiry as
seems appropriate in the circumstances. In this
case, it has not been established that the inquiry
conducted by the Appeal Board was not suffi
cient to enable it to deal with the matter that
was before it. The mere fact that it is possible to
envisage a more thorough inquiry than that that
was conducted does not invalidate the decision,
particularly when it does not appear that the
applicant asked the Appeal Board to require
production of the documents that he now claims
the Appeal Board should have examined.
' [1973] F.C. 688.
I am, therefore, of opinion that the contention
that the Appeal Board refused to exercise juris
diction must be rejected.
2. The Contention that the Appeal Board erred
in Law
Counsel for the applicant submitted that the
Appeal Board was wrong in law when it decided
that the Selection Board did not have to take
into consideration a candidate's ability to
express himself in several languages when rank
ing the candidates according to merit.
What the Appeal Board decided in this con
nection, however, was not that the Selection
Board did not have to take into consideration a
candidate's language abilities but rather that it
was not necessary that the Selection Board,
when ranking the candidates according to merit,
make a special evaluation of each candidate's
knowledge of languages. I find no legal error in
that decision. The Selection Board was required
by section 7(4) of the Regulations to determine
the relative merits of candidates "in accordance
with the appropriate selection standards pre
scribed by the Commission" and the selection
standards prescribed for positions in the FS-3
level contain no specific requirement concern
ing knowledge of languages.
I now come to the submission put forth on
behalf of the applicant which, in my opinion,
requires the most careful consideration. I refer
to the submission that the Appeal Board erred
in law in not setting aside the selection made by
the Selection Board on the ground that the
Selection Board took into consideration, in
ranking the candidates according to merit, infor
mation contained in documents that it ought not
to have considered.
It is not in dispute that the candidates' files
used by the Selection Board in reaching its
decision contained periodic reports made in
respect of the candidates by their superior offi
cers. Some of these reports, those made after
1969, had been communicated to the candidates
concerned; the remainder had not been com
municated to them. It is also common ground
that the files used by the Selection Board con
tained recommendations made in respect of
each candidate by a committee called the
"Appraisal Review Committee for FS-2's". That
committee, whose composition and function are
unknown, had, it seems, examined each candi
date's file, before the Selection Board examined
them, and had prepared a recommendation in
respect of each candidate, as to whether he
should, or should not, be promoted from the
FS-2 level to the FS-3 level. That committee
had recommended that the applicant not be pro
moted immediately. The applicant claims that
the Selection Board should not have taken those
recommendations into consideration.
The applicant also claims that the Selection
Board should not have considered the reports
prepared before 1970 in respect of each candi
date. He complains particularly of reports that
had been made before 1970 by one of his supe
riors concerning him and that had been left on
his file. Such reports, he contends, were inaccu
rate and had not been brought to his attention
until 1973. (It must be noted, however, that,
after he was aware of the contents of the
reports in question, the applicant prepared a
commentary on them in writing for the depart
mental authorities who were concerned and that
such commentary formed part of the file that
the Selection Board considered.)
To understand the submissions of counsel for
the applicant on this point, it is necessary to
have in mind the relevant provisions of the
statute and the regulations.
Section 10 of the Public Service Employment
Act reads, in part, as follows:
10. Appointments to or from within the Public Service
shall be based on selection according to merit, ... and shall
be made by the Commission ... by competition or by such
other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in
the best interests of the Public Service.
Section 33 of that Act authorizes the Com
mission to make "such regulations as it consid
ers necessary to carry out and give effect to this
Act". Pursuant to such power, the Commission
has made the Public Service Employment Regu
lations, which deal inter alia with "other" pro
cesses of personnel selection to which reference
is made in section 10 of the statute. Those
provisions were changed substantially on
November 20, 1969, and it is useful to refer
first to the regulations as they were before they
were so changed.
Prior to November 20, 1969, section 7 of the
Regulations required appointments to be made
"by competition" except in three classes of
cases, one of which was where the responsible
staffing officer was of opinion that "all prospec
tive candidates in the Public Service are known
and their merit can be assessed and established
through an appraisal process". In such a case,
the selection of the persons to be appointed fell
into two principal stages, viz:
1. in the first place, as required by section 12
of the Regulations, the responsible staffing
officer had to determine "the part, if any, of
the Public Service and the occupational
nature and level of positions, if any," in
which a civil servant had to be employed in
order to be eligible for appointment; and
2. in the second place, each employee
employed in a position of an occupational
nature and level that the responsible staffing
officer had considered appropriate had to be
evaluated (section 13(2)) by an appraisal pro
cess that had to be "consistent" with the
following inter alia provisions:
13. (2) . . .
(b) the appraisal process shall be conducted by a board,
established by the responsible staffing officer, consisting
of one or more persons, none of whom shall be the
immediate supervisor of any employee who is to be
considered in the appraisal process, and all of whom shall,
in the opinion of the responsible staffing officer, be
familiar with the needs of the unit in which appointments
may be made;
(c) the board established pursuant to paragraph (b) when
conducting the appraisal process, shall have regard to
such matters in relation to every employee who is con
sidered in the appraisal process as, in the opinion of the
board and the responsible staffing officer, will permit the
qualifications of the employee to be determined and,
without restricting the generality of the foregoing, the
board shall have regard to the following matters, namely:
(i) the opinions of supervisors of the employee as to the
potential and best direction for development of the
employee, and
(ii) the knowledge and experience of the employee to
gether with the opinions of the employee as to his own
expectations, needs and desires for development;
(d) the chairman of the board established pursuant to
paragraph (b) shall, after paragraph (c) has been complied
with, review the conclusions and recommendations pro
posed to be made in relation to each employee with the
immediate supervisor of the employee;
The amendments made to the Regulations on
November 20, 1969, did not change the first
stage of the procedure that I have just
described. The provisions concerning the
second stage were, however, replaced by others
which provided for two further stages after the
first stage. The selection that was made former
ly in two steps is now made in three steps, viz:
1. the responsible staffing officer, as previ
ously, commences by deciding what position
an employee must be in to be considered as a
candidate for the proposed appointment (sec-
tion 12);
2. employees who meet the qualifications for
an appointment are identified (section
7(3)(a)); and
3. the relative merit of the candidates is then
determined (section 7(4)).
The last two steps of this selection procedure
are governed by section 7 of the Regulations.
Before quoting section 7, reference should be
made to two expressions that are used in it,
namely, "inventory" and "employee appraisal".
To understand what is meant by "employee
appraisal" as used in the amended Regulations,
reference must be made to section 13, which
reads as follows:
13. (1) An employee appraisal is an evaluation of an
employee
(a) in which the employee, the employee's supervisor and
a review committee of one or more managers participate;
and
(b) that results in a written record that includes
(i) an assessment of the employee's overall perform
ance and achievement during the evaluation period,
(ii) an indication of the capacities and interests of the
employee for future employment, and
(iii) current data on the employee's demonstrated occu
pational skills.
(2) The assessment of an employee's performance shall
be based on selection standards, completed by the supervi-
sor, shown to the employee and signed by both the supervi
sor and the employee.
(3) A copy of each record referred to in subsection (1)
shall be sent to the Commission in respect of employees in
such categories and groups as may be designated by the
Commission.
The definition of "inventory" appears in section
2(1)(ca) of the Regulations, which reads as
follows:
2. (1) In these Regulations,
(ca) "inventory" means an ordered record of the whole or
part of the data referred to in subsection (6) of section 7
relating to employees or other persons;
With this definition should be read section
7(6) and (7), which read as follows:
7. (6) Inventory data used in the selection process shall
include that pertaining to:
(a) education and other training;
(b) language skills;
(c) occupational skills and work history;
(d) performance assessment referred to in section 13; and
(e) statutory priorities for appointment.
(7) An employee has a right to review the inventory data
that pertains to him, and a transcript of such data shall be
supplied to an employee for that purpose at least once in
every twelve-month period.
In the light of those provisions, I turn to
section 7 of the Regulations, which reads in part
as follows:
7. (1) Every appointment shall be in accordance with
selection standards and shall be made
(a) by open or closed competition; or
(b) by other process of personnel selection
(i) from among employees in respect of whom data is
recorded in an inventory, which employees meet the
qualifications for the appointment, or
(3) For the purposes of paragraph (b) of subsection (1)
(a) employees who meet the qualifications for an appoint
ment shall be identified as candidates by a review of the
data referred to in subsection (6) recorded in an inventory
of all employees who would have been eligible to compete
if a competition had been conducted; and
(4) The relative merit of employees or applicants identi
fied as candidates from an inventory shall be determined
(a) by assessing the candidates in accordance with the
appropriate selection standards prescribed by the Com
mission; and
(6) subject to subsection (5), where the candidates are
employees, by taking into account the results of the
employee appraisal described in section 13.
According to counsel for the applicant, the
object of the November 1969 amendments was
to ensure that the selection of employees for
promotion in the Public Service would be based
on information that the eligible employees knew
to be correct. As part of the scheme to attain
that object, according to the submission, (a) the
Regulations provide for a file in respect of each
employee containing "inventory data" and an
"employee appraisal", (b) the correctness of the
"employee appraisal" is ensured by the
employee's participation in its preparation, (c)
the correctness of the "inventory data" is
ensured by section 7(7) which confers on an
employee the right "to review the inventory
data that pertains to him ...", and (d) section
7(3) requires that the second step in the selec
tion process, that is the selection of the
employees who are eligible for appointment, be
based on the "inventory data". According to the
submission of counsel for the applicant, when
one comes to the third step, namely, determin
ing the relative merit of the qualified candidates,
that must also be done on the basis of the
"inventory data" and, in some cases, on the
basis also of the "employee appraisal". They
submit that that is so notwithstanding that sec
tion 7(4), which governs this third step in the
selection process, does not so provide. Accord
ing to counsel for the applicant, however, to
interpret the Regulations otherwise would
defeat the object of the 1969 amendments, for
nothing is accomplished by requiring the second
step to be based on "inventory data" if, in
carrying out the third step, recourse may be had
to information that has not been subjected to
the same tests as to correctness and objectivity.
Their submission is, therefore, that, as it is
common ground that the selection attacked by
the applicant was based on information obtained
otherwise than from the inventory and the
employee appraisals, it follows that the selec
tion was improperly made and should have been
set aside by the Appeal Board.
The submissions so made on behalf of the
applicant are based on the premise that the 1969
amendments to the Regulations were intended
to ensure that the whole selection process was
carried out exclusively on the basis of informa
tion in the inventory or in employee appraisals.
In my opinion, that premise is not valid. Section
7(3) of the Regulations expressly provides for
the second step of the selection process being
carried out on the basis of inventory data alone.
Section 7(4), however, does not impose any
such limitation on the carrying out of the third
step of the selection process, namely, the deter
mination of the relative merit of the qualified
employees. Section 7(4) imposes two obliga
tions on those who have to determine relative
merit: first, it must be done "in accordance with
the appropriate selection standards", which
obligation does not relate in any way to the
problem as to what information concerning the
candidates can be considered in determining
their relative merit; second, it must be done
after taking into account the results of the
employee appraisals. Section 7(4) does not
impose any limitation on the sources of infor
mation that are available to those who have the
duty of determining the relative merit of the
qualified candidates. The purpose of the 1969
amendments was not as has been contended on
behalf of the applicant. It was, in the first place,
to divide the selection process into three steps
so that the second step could be based on the
inventory data, and, in the second place, to
ensure that the last step of the selection process
was not carried out without taking into account
the employee appraisal.
My conclusion is, therefore, that the Selection
Board did not fail to comply with any require
ment in the Act or Regulations when it took into
consideration information other than the infor
mation contained in the inventory and in the
employee appraisals for the purpose of deter
mining the relative merit of the qualified
candidates.
For the above reasons, I am of opinion that
this section 28 application should be dismissed.
* * *
JACKETT CJ. and THURLOW J.—Without
expressing any opinion as to the effect in detail
of the pre-1969 regulations (which effect
cannot, in our opinion, affect the reasoning in so
far as the present matter is concerned), we
concur in the result proposed and in the reasons
therefor.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.