A-14-75
R. J. Brown, D. S. Cameron, L. D. Carroll, J.
Drapeau, W. Gray, I. Hamilton, G. Kerr, R.
Lapointe, E. Marshall, K. McKay, B. F. S. O'Con-
nor, H. Parker, H. Smith, W. Smith, G. Suther-
land, V. Vanderstoel, E. Woodford and J. L.
Gagnon (Applicants)
v.
Appeals Branch, Public Service Commission
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, February 14 and March 14, 1975.
Judicial Review—Public Service—Public Service Appeal
Board directing that proposed appointments not be made—
Whether Board erred in law—Public Service Employment Act,
R.S.C. 1970, c. P-32, ss. 6, 8, 10, 12(1) and 21—Department
of Manpower and Immigration Act, R.S.C. 1970, c. M-1, s.
2—Civil Service Act, R.S.C. 1952, c. 48, s. 10; S.C. 1960-61, c.
57, ss. 9 and 82(2)—Financial Administration Act, S.C. 1970,
c. F-10—Public Service Employment Regulations, SOR/67-
129, ss. 1, 2, 6, 7(1), (3), (4), (6), and SOR/69-592, ss. 12, 40A,
B and 41.
In an evaluation of foreign service officers in the Department
of Manpower and Immigration, all FS-1 officers were to be
included, "while those for primary consideration [would] nor
mally include those for whom four ... annual appraisal reports
[had] been received". As a result of an appeal by a Mr. Morin,
the nominations of the Selection Board were disallowed. A
second appeal, by a Mr. Colfer, was dismissed because he had
not met the "basic requirements of four ... reports", the Board
finding no valid reason to derogate from the four year mini
mum. A second Board, convened as a result of the Morin
appeal, selected the same twenty candidates originally chosen.
A third appeal by one Oppertshauser, who had three and one
half year's service, resulted in the overturning of the twenty
nominations, the Board finding that the Foreign Service Selec
tion Standards prohibited a specific time-in-level requirement.
Held, the application is allowed, the decision is set aside, and
the matter is referred back to the Board. Selection standards of
the Public Service Commission, presumably made under sec
tion 12 of the Public Service Employment Act, were apparently
used as "qualifications" for appointment for the purpose of
identifying candidates under section 7(3)(a) of the Regulations.
While ordinarily, "qualifications" and "selection standards"
used under section 7(4)(a) of the Regulations to assess "rela-
tive merits" of "applicants identified as candidates" are two
distinct things, here, the Department adopted a "Selection
Standards" document of the Commission (which sets out
qualifications as opposed to selection standards for determin
ing merit) for a statement of qualifications required by the
Department. The Department, it seems, then added the four
year requirement. The appointment of the new Board after the
Morin appeal falls within the implied power of the Commission
to take such steps as it deems necessary to remedy the defects
found by the Board. The Board in the Oppertshauser appeal
was, however, wrong in holding that the four reports require
ment was invalid and contrary to the "Selection Standards".
The Board was not bound to establish qualifications subject to
the Commission's "Selection Standards". And, that part of the
"Selection Standards" document relied on was not part of the
standards established thereby. Even that part of the document
on which the Chairman relied, when read as a whole, permits
the requirement of a fixed number of years' reports, even
though this may result in a minimum experience requirement.
Section 21 appeal procedure is an administrative review of an
administrative process; its purpose is to remedy injustice, not to
create technical difficulty. Administrative documents must be
read in such a way as to give them the meaning intended by the
writers, thus, the words "those for primary consideration will
normally include those for whom four ... Reports have been
received" are to be interpreted as words of qualification, sub
ject to an administrative discretion to waive them.
In re Public Service Competition 73-EXT-IV-203-A FS3
[1974] 1 F.C. 432, applied.
APPLICATION for judicial review.
COUNSEL:
D. Dehler for applicant.
M. Kelen for respondent.
SOLICITORS:
Vincent, Choquette, Dehler & Dagenais,
Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.:
INTRODUCTION
This is a section 28 application to set aside the
decision of an Appeal Board (S. Shainfarber) on
an appeal under section 21 of the Public Service
Employment Act by M. A. Oppertshauser against
the proposed appointments of the applicants as
"FS 2's".
Owing to the complicated nature of the problem
raised by this section 28 application, I propose to
break my consideration of the matter into three
main parts, viz:
I. preliminary consideration of the law appli
cable to a promotion (i.e., appointment from a
lower level to a higher level) in the public
service made otherwise than by "competition";
II. the material put before this Court concern
ing this matter;
III. discussion of the legal problems raised by
this section 28 application.
It is well to have in mind that the decision under
attack by this section 28 application is a decision
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 appointed
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 Commis
sion to conduct an inquiry at which the person appealing and
the deputy head concerned, or their representatives, 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.
I. PRELIMINARY CONSIDERATION OF THE LAW
APPLICABLE TO A PROMOTION IN THE PUBLIC
SERVICE MADE OTHERWISE THAN BY COMPETI
TION
Before it is possible to address one's mind to the
subject matter of this section 28 application, it is
necessary to review, so as to have in mind, the
legal position with regard to
(1) the creation of a position—i.e., the legal
authority to employ a person in the Public Ser-
vice—and the determination of the qualifica
tions required for appointment to such a
position,
(2) the power of appointment to a position in
the Public Service,' and
(3) the manner in which a promotion is to be
made in the Public Service.
Only when one has in mind a sufficient knowledge
of the legal rules governing promotion in the
Public Service from these different points of view,
can one, at least in some cases, form an opinion as
to whether an "appointment" or "proposed
appointment" from within the Public Service of
one person has prejudicially affected, or would
prejudicially affect, the opportunity of advance
ment of some other person within the meaning of
section 21 of the Public Service Employment Act.
In some cases, where there is an "appeal" under
section 21, the point involved is such that it is
unnecessary to address one's mind expressly to
such legal rules. In this case, however, the problem
raised is such as to make reference to such rules
necessary and is so unusual as to require that such
rules be examined with some care.
1. Authorization for appointments and for deter
mination of qualifications required for appoint
ments
The Public Service is divided, generally speak
ing, into departments, each of which is headed by
a Minister who is by statute charged with the
management and direction of his department. 2
Subject to the constitutional requirement of
obtaining authority to expend public monies from
Parliament, this would, in the absence of any other
law, confer on the Minister the power (because the
I Technically, a "position", as I understand the term, is the
legal authority to employ a person in the Public Service, an
"establishment" is an enumeration of the positions authorized
in some department or branch of the Public Service, and
"classification" may be either a description of classes of posi
tions by reference to convenient class or other titles or the
assigning of a particular position to a place in such a
classification.
2 In the case of the Department of Manpower and Immigra
tion, the statute is the Department of Manpower and Immigra
tion Act, R.S.C. 1970, c. M-1, section 2 of which reads:
2. (1) There shall be a department of the Government of
Canada called the Department of Manpower and Immigra
tion over which the Minister of Manpower and Immigration
appointed by commission under the Great Seal shall preside.
(2) The Minister holds office during pleasure and has the
management and direction of the Department of Manpower
and Immigration.
power of "management" would include such
power) to determine how many employees there
should be in the Minister's department and what
qualifications they should have. There are, how
ever, other laws to be considered. Prior to 1967, a
person employed in the Public Service had to be
appointed to a "position" that fell within a classifi
cation of positions dated October 1, 1919, as
amended from time to time by the Civil Service
Commission.' In March, 1967, three new statutes
were brought into force making changes in the law
governing the Public Service, which changes had
to do, in whole or in part, with the introduction of
collective bargaining into the Public Service. In
considering this section 28 application, we are only
concerned with two of such statutes, viz,
(a) the Public Service Employment Act, c. 71,
of the Statutes of 1966-67, and
(b) chapter 74 of the Statutes of 1966-67
(making amendments to the Financial Adminis
tration Act).
The Public Service Employment Act (section 48)
repealed the Civil Service Act but did not contain
any provision continuing the "classification" that
had had legal effect (as varied from time to time)
from 1919 to 1967, and did not confer on the
Public Service Commission created thereby the
powers of classification previously enjoyed by the
Civil Service Commission that it replaced. On the
See section 10 of the Civil Service Act, R.S.C. 1952, c. 48,
which reads, in part:
10. (1) The Civil Service shall, as far as practicable, be
classified and compensated in accordance with the classifica
tion of such Service dated the 1st day of October, 1919,
signed by the Commission and confirmed by chapter 10 of
the statutes of the year 1919, 2nd session, and with any
amendments or additions thereto thereafter made; and refer
ences in this Act to such classification shall extend to include
any such amendments or additions.
(2) The Commission may, as it from time to time deems
necessary,
(a) establish additional classes and grades and classify
therein new positions created or positions included or not
included in any class or grade established in the said
classification, and
(b) divide, combine, alter, or abolish existing classes and
grades.
and see section 82(2) and section 9 of the Civil Service Act,
S.C. 1960-61, c. 57.
other hand, chapter 74 of the Statutes of 1966-67
amended the Financial Administration Act so as
to confer on Treasury Board a legal power to
"provide" for the "classification of positions and
employees" in the Public Service. The result would
seem to be that the management power of deter
mining what employees are to be employed in
departments (to the extent that monies have been
made available by Parliament) has been returned
to the Minister subject to any classification of
positions or employees "provided" for by Treasury
Board. Certain "qualifications" required of an
employee for a particular appointment might have
been, or might presumably be, determined, either
before or after 1967, by the terms of the classifica
tion (where there was or is one that was or is
applicable). (If the power given by or under statu
tory authority to spend a certain sum of money is
limited by some procedure to paying salaries of
employees holding positions described in a legally
established classification, such employees must, it
seems clear, have the qualifications, if any,
required by the terms of the classification for such
positions.) Subject thereto, however, I should have
thought that there could be no doubt that the
Minister's power of management would include,
and always has included, the right to stipulate
what qualifications he requires of any person being
appointed to a position in his department. 4
2. Legal authority for an appointment
In the absence of any limitation on a Minister's
power of management of his department conferred
on him by his departmental Act, such power would
include the power of selecting and appointing the
public servants necessary to enable him to dis
charge his statutory and other legal functions. This
power has, however, generally speaking, long been
removed from the Minister and is presently con
ferred on the Public Service Commission by sec
tion 8 of the Public Service Employment Act,
which reads as follows: 5
E.g., there may be authority to employ an employee in a
position of a class that requires, as qualifications, a certain
ability to type and a certain ability to take shorthand but,
because such person is required for service in a certain foreign
country, the Minister may require, as an additional qualifica
tion, the ability to use the language of that country.
5 While it is not, apparently, relevant for present purposes,
8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or from
within the Public Service of persons for whose appointment
there is no authority in or under any other Act of Parliament.
3. Legal procedure for an appointment
Firstly, it is to be noted that the Public Service
Commission does not have responsibility for the
operation of any ordinary department of govern
ment and does not, therefore, determine when the
necessity has arisen for making an appointment.
Appointments are only made, therefore, by the
Commission at the request of the deputy head.
Secondly, it has long been a principle governing
appointments to the Canadian Public Service that
such appointments are legally required to be made
by a process of "selection according to merit".
Thirdly, appointments must be made "by competi
tion" or by some other "process of personnel selec
tion" designed to establish "the merit of candi
dates". These three principles are all wrapped up
in section 10 of the Public Service Employment
Act, which reads as follows:
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, 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 10 must be read with section 12(1) of that
Act, which reads as follows:
12. (1) The Commission may, in determining pursuant to
section 10 the basis of assessment of merit in relation to any
position or class of positions, prescribe selection standards as to
education, knowledge, experience, language, age, residence or
any other matters that, in the opinion of the Commission, are
necessary or desirable having regard to the nature of the duties
to be performed, but any such selection standards shall not be
inconsistent with any classification standard prescribed pursu
ant to the Financial Administration Act for that position or any
position in that class.'
the Commission may authorize the deputy head of a branch of
the public service to exercise this power. See section 6 of the
Public Service Employment Act.
6 Presumably the document called "Selection Standards", to
which reference will be made later in these Reasons, was
prepared with section 12 in mind although there is nothing
before us to indicate that that document was prescribed by the
Commission pursuant to section 12 so as to give it the effect of
delegated legislation.
(continued on next page)
In addition it is to be noted that section 33 of the
Act.authorizes the Commission to make, subject to
the Act, such regulations "as it considers necessary
to carry out and give effect to the Act", and we
have been handed a document that purports to be
an office consolidation (not printed by the Queen's
Printer) of Public Service Employment Regula
tions established by SOR/67-129 of March 13,
1967, "with all amendments made thereto up to
this date (April, 1973)". This document reads in
part as follows:
Short Title.
1. These Regulations may be cited as the Public Service
Employment Regulations.
Interpretation.
2. (1) In these Regulations,
(a) "Act" means the Public Service Employment Act;
(b) "desirable qualifications", in relation to a position or
class of positions, means the factors or circumstances that
are desirable, having regard to the nature of the duties to be
performed, and that are to be taken into account, in addition
to the essential qualifications for the position or class of
positions, when assessing candidates for the position or class
of positions;
(c) "essential qualifications", in relation to a position or
class of positions, means the minimum factors or circum
stances that are necessary having regard to the nature of the
duties of the position or class of positions;
(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.
(e) "responsible staffing officer" means the person author
ized to exercise or perform the power, function or duty in
relation to which the context extends.
(2) Unless the context otherwise requires, the Interpretation
Act applies to the construction and interpretation of these
Regulations as if the provisions thereof were set forth herein.
Statement of Qualifications.
6. (1) Except as otherwise determined by the Commission in
any case or class of cases, the responsible staffing officer,
before an appointment is made to a position, shall ensure that
(Continued from previous page)
The statute does not provide as clear an idea as one would
have liked of the difference intended between "Selection Stand
ards" and "Classification Standards". This problem will have
to clarify itself as different problems arise. I should have
thought, however, that a classification standard might be the
ability to take shorthand of evidence given in court and a
corresponding selection standard might be an ability to take
shorthand at "X" words per minute determined in a certain
manner.
there is available for distribution to the Commission, to pros
pective candidates and to other persons who may be interested
in the appointment, upon request, a statement in writing, in
both the English language and the French language, of the
qualifications for the position.
(2) Every statement of qualifications for a position shall
specify and differentiate between those qualifications that are
essential qualifications and those qualifications, if any, that are
desirable qualifications for the position.
Processes and Area of Selection.
7. (1) Every appointment shall be in accordance with selec
tion 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 identified
as candidates from an inventory shall be determined
(a) by assessing the candidates in accordance with the
appropriate selection standards prescribed by the Commis
sion; and
(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.
Reference should also be made to section 12,
substituted by the Commission on November 20,
1969, although it does not appear in the Office
Consolidation. It appears in the Canada Gazette,
Part II, SOR/69-592, and reads as follows:
12. Before an appointment is made from within the Public
Service by a process of personnel selection referred to in
paragraph (b) of subsection (1) of section 7, the responsible
staffing officer shall determine the part, if any, of the Public
Service and the occupational group and level, if any, in which
prospective candidates would have to be employed in order to
be eligible to compete if a closed competition were held.
Among the other papers placed before this
Court by counsel for the parties is a copy of a
Public Service Commission publication purporting
to deal with "Selection Standards" for the
"Foreign Service", the preface of which reads as
follows:
PREFACE
Selection Standards are complementary to, and should be used
in conjunction with, the staffing Manual published by the
Public Service Commission of Canada.
Selection Standards are written in three parts:
PART I is, in effect, a handbook which explains the format and
application of Selection Standards.
PART n contains general information on this Group, an indica
tion of normal career progress, and a glossary of terms as used
in the Group Standards.
PART III comprises the Selection Standards for each level in
the Group.
From this, it would appear that the actual "Selec-
tion Standards" (assuming that this document has
been adopted by the Public Service Commission
under section 12 of the Public Service Employ
ment Act) are to be found only in Part III of the
document. In Part I of the "Introduction to Selec
tion Standards", under the heading "General
Information", one finds:
PURPOSE The primary purpose of these selection standards is
to establish a pattern for the selection or promotion of staff
within or to the Public Service according to merit, through
achievement-and-goals-oriented criteria.
Their secondary purpose is to provide the basis upon which
departments can develop systems for personnel activities and
techniques such as probationary or performance appraisal,
advertising of employment opportunities, appeals, training and
career planning and development, performance standards, and
testing and interviewing criteria; and upon which employees
may orient job behaviour and set personal goals.
CONCEPT Selection standards must provide criteria to ensure
consistency, objectivity, and reasonable uniformity in staffing
activities throughout the Public Service; be sufficiently flexible
and adaptable to facilitate placement; and meet the legislative
requirement to be "not inconsistent with the classification
standards" established by the Treasury Board. Knowledge,
abilities and personal attributes, therefore, are defined in broad
terms applicable to all assignments in a level and must be
interpreted by focusing on specific requirements. This qualita
tive approach which is fundamental to the concept of the
standards is substituted throughout for educational achieve
ment in terms of years in school or an education certificate or
diploma, and years of work experience. Such quantitative cri-
teria are normally a reflection of the average time required by
an average person to reach a required level of competence.
They tend to become inflexible and prevent staffing officers
from qualifying above-average candidates who achieve the
breadth of knowledge, abilities and capability in a shorter time.
BASIC REQUIREMENTS These are the criteria for initial screen
ing in any staffing process and are, therefore, not scored as part
of the evaluation and ranking of candidates. Relevant items
should be selected from the following list of prerequisites,
interpreted in terms of position requirements, and advertised:
—acceptable evidence of ability to carry out the practical
aspects of the assignment normally indicated through work
history or prior achievement; this requirement may be
expressed in terms of experience; descriptive adjectives may
be used, but a specific number of years must not be
stipulated.
Part II reads, in part, as follows:
PART II: GROUP INFORMATION
NATURE OF WORK The Foreign Service Group includes officers
whose assignments are concerned with the development and
conduct of Canada's diplomatic, commercial, manpower de
velopment and international development policies and interests
in other countries and in international organizations; the anal
ysis of the political, social, economic and manpower develop
ments in those countries and organizations and the provision of
related advice; the negotiation of matters affecting the political,
cultural and economic relations between Canada and other
countries; the promotion of trade; the operation of the manpow
er and immigration programs and the operation of the interna
tional development program abroad, the explanation and
application in other countries of Canadian legislation and
policies; the protection and advancement abroad of the interests
of Canadians.
Positions included in the group are those in which programs or
segments of programs are conducted, the objectives of which
are the promotion of Canada's diplomatic, commercial, man
power and international development interests in other coun
tries through a career rotational foreign service. Also included
are positions occupied by members of the group during tempo
rary postings to Canada.
GROUP DESCRIPTION The classification standard for the Foreign
Service Group differs from other classification standards now
in use throughout the Public Service. It provides a method for
determining the levels of activities in each post abroad by
evaluating the post activities rather than the duties assigned to
positions. The post activities are evaluated and assigned to
classification levels within a five level structure, by comparing
them with descriptions of degrees of complexity for seven
functional groupings. The functional groupings which describe
all the activities conducted by Foreign Service Officers in any
post abroad, are:
(1) Political and Economic Affairs
(2) Commercial and Economic Affairs
(3) Manpower and Immigration Affairs
(4) International Development Affairs
(5) Information and Cultural Affairs
(6) Consular Affairs
(7) Post Operations
Another distinguishing feature of the Foreign Service Classifi
cation Standard is that it provides a means of evaluating only
the activities that are performed in posts abroad by officers of
the Foreign Service Group. It does not provide a technique for
evaluating positions whose incumbents report to supervisors
who in turn report to a head of post or an officer at the second
management level; nor does it incorporate a technique for
evaluating the activities of Foreign Service Officers who are
working in Canada, and are engaged either in regular head
quarters activities or are seconded to other departments, private
industry or universities. For personnel administration and
budget control purposes in dealing with these positions which
are included in the Foreign Service Group, but for which no
evaluation technique is provided in the Foreign Service Classifi
cation plan, the activities performed by these Foreign Service
Officers may be identified according to the operational require
ments of the department or by using the certified classifications
of the incumbents themselves.
Officers of the Foreign Service Group are in a career foreign
service of which a distinguishing feature is the condition of
employment that requires them to accept a continued series of
periodic transfers among posts abroad. Entry into the group is
normally through the Development Program. Career progres
sion in the Foreign Service is based on proven ability to
perform effectively at the level at which an officer is certified
together with evidence of having obtained the breadth of
knowledge and demonstrated the capabilities required for effec
tive performance at the next higher level. Such knowledge and
capabilities are derived from a variety of training programs,
assignments and postings.
While time-in-level is in itself not an acceptable criterion for
consideration for promotion, it is recognized that decisions on
promotion can be fair and meaningful only if officers have
served long enough in a level to enable management to properly
assess their knowledge, abilities and their potential for effective
performance at the next higher level. In order to ensure there is
available adequate objective appraisal material, evaluation for
promotion will normally only be possible after an officer has
received a specified minimum number of annual appraisal
reports at his current level. In reaching promotion decisions
Management will consider all appraisal reports received at an
officer's current level together with his previous foreign service
career record.
In a decision of this Court in a similar case
involving an appointment to "FS 3" in the Depart
ment of External Affairs,' Pratte J. summarized
the steps required by the Regulations in an
appointment under regulation 7(1)(b)(i) [at page
440] as follows:
1. the responsible staffing officer, as previously, commences by
deciding what position an employee must be in to be considered
as a candidate for the proposed appointment (section 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)).
4. To summarize, the steps contemplated by law
before a promotion (appointment from within the
public service) can be made, in the manner con
templated by Regulation 7(1)(b)(i), to a vacant
position are:
(1) authorization for the position,
(2) classification of the position as provided for
by Treasury Board (if Treasury Board has made
a relevant provision requiring such a
.classification),
(3) request from the deputy head to the Public
Service Commission for appointment to the
position pursuant to section 10 of the Public
Service Employment Act, which request must,
either expressly or impliedly, state
(a) the qualifications required by the relevant
classification, if any, for positions of that
class, and
(b) in addition, qualifications required by the
deputy head for the particular position,
(4) distribution to the Commission, to prospec
tive candidates and others of a statement in
writing "of the qualifications for the position",
as required by regulation 6,
(5) a decision under regulation 12 as to the part
of the Public Service and the occupational group
and level in which prospective candidates have
' In re Public Service Competition 73-EXT-IV-203-A FS3,
[1974] 1 F.C. 432.
to be employed "in order to be eligible to com
pete if a closed competition were held",
(6) from employees ascertained under regula
tion 12, identification "as candidates", under
regulation 7(3)(a) of those who meet the
"qualifications" for appointment,
(7) determination of the relative "merit" of
those identified under regulation 7(3)(a) as can
didates "in accordance with the appropriate
selection standards prescribed by the Commis
sion", as required by regulation 7(4)(a).
II. FACTS CONCERNING THIS MATTER
The facts leading up to this appeal as estab
lished or accepted before us are as follows:
1. On December 21, 1973, a memorandum was
written to "Career Rotational Foreign Service
Officers" in the Department of Manpower and
Immigration concerning "Employee Evaluation
FS Officers 1973 Program", which memoran
dum, in addition to an introductory paragraph
reading as follows:
1. The purpose of this memorandum is to inform all rating
officers and officers of the current requirements for the
1973 Employee Evaluation Program for all FS officers in
the M&I Foreign Service. The reporting period for this
program will be the 1973 calendar year. The evaluation
rendered in this program will be used for a promotion
exercise to FS 2 and FS 3 levels which we anticipate will
be conducted early in the new year and also for the next
Performance Pay exercise which will be conducted early in
the new year. The effective date for the promotion exercise
will be April 1, 1974 and the effective date for Perform
ance Pay will be March 25, 1974.
and sections concerning the "Evaluation" proce
dures, contained a section reading, in part, as
follows:
V. Promotion Program
The Promotion Program will be conducted in accord
ance with Sec. 7(1)(b)(i) of the Public Service Employ
ment Regulations. The Board will be chaired by the Public
Service Commission. All Manpower and Immigration For
eign Service Career Rotational Officers at the FS 1 and
FS 2 levels will be considered for promotion. In the
selection process the Promotion Board will examine each
officer's employment record, including the information
contained in evaluation reports and Data Stream records.
The qualification requirements for the FS 2 and FS 3
levels are contained in the Public Service Commission
Selection Standards for the FS occupational group.
2. In March, 1974, there was signed on behalf
of the Public Service Commission and the
Department of Manpower and Immigration a
"Sharing Arrangement for the Conduct of
Selections" re "Annual Promotions Board FS 1
to FS 2 level" (Competition or Classification
Decision No. 74 -MID -IV-FS-1), which con
tained the following, inter alfa, under the head
ing "Special instructions":
1. Mr. R. A. Girard or Mr. W. Greaves or Mr. N. Derrick
Is designated to fulfill the duties of a Responsible Staffing
Officer and to be guided by the Public Service Employ
ment Act, Public Service Employment Regulations and the
Public Service Terms and Conditions of Employment
Regulations, as well as the Staffing Manual and FS 2
Selection Standards in guiding the FS 2 Promotions
Board.
2. The Area of Competition is to include all FS 1 Officers,
while those for primary consideration will normally include
those for whom four (4) Annual Appraisal Reports have
been received at the FS 1 or equivalent level.
3. On May 10, 1974, a memorandum, referring
back to the memorandum of December 21,
1973, was written to "All FS 1 Career Rotation
al Foreign Service Officers". It reads in part:
2. The selection process to consider FS 1 officers for
promotion to the FS 2 level has now been completed. The
Selection Board was convened under a work sharing agree
ment between the Department and the Public Service
Commission. The Board was chaired by Mr. R. A. Girard
and the Board Members were Messrs. N. E. Derrick and
W. E. Greaves, Manpower and Immigration Foreign Ser
vice, Mr. W. H. Schumacher, Trade Commissioner Ser
vice, Industry Trade and Commerce and Mr. Stan Carl-
son, External Affairs.
3. Twenty appointments are to be made as a result of this
selection program and the names of the officers selected
for promotion, to be made effective April 1, 1974, are
listed with the Notice of Right to Appeal attached hereto.
The "Notice of Right of Appeal" attached
thereto reads, in part, as follows:
13. Employees who have the following qualifications have
the right to appeal
All Manpower & Immigration Career Rotational For
eign Service Officers at the FS 1 level
The list of "officers selected for promotion, to be
made effective April 1, 1974" contained the
names of the applicants to this Court, plus two
others.
4. On July 11, 1974, a decision was rendered
under section 21 of the Public Service Employ
ment Act on an appeal brought by one Albert
Morin. That decision, whereby Mr. Morin's
appeal was allowed, reads in part as follows:
[TRANSLATION] Mr. Albert Morin is appealing pursu
ant to section 21 of the Public Service Employment Act
against the proposed appointments of Messrs R. J. Brown,
B. F. S. O'Connor, J. Klassen, G. A. Sutherland, D. S.
Cameron, W. Major and L. D. Carroll as the result of
Competition 74-MID-IV-FS-1 (Career Rotational Foreign
Service), Department of Manpower and Immigration,
Ottawa, Ontario.
He was a candidate in a closed competition held under
the provisions of section 7(1)(b)(i) of the Public Service
Employment Regulations. The selection was made by
manual inventory and covered all FS-1 officers who had
been the subject of four annual appraisal reports at present
or equivalent level. The information put before the Board
was taken from each candidate's confidential file. Con
sideration of these files was the only selection tool, as no
interviews were held. A total of 107 candidacies were
considered by a Rating Board ....
Of the 107 candidacies submitted thirty-four were
approved by the Board. Twenty candidates were found to
be highly qualified, and their names were placed on an
eligibility list in order of merit. The seven persons whose
proposed appointments are the subject of this appeal were
among the first twenty, and obtained the following results:
Potential for Order
Name Knowledge (50) Abilities (100)(30) Effectiveness Total of Merit
Possibilités Ordre du
Noms Connaissances (50) Aptitudes (100)(30) de rend. (150) Total mérite
BROWN, R. J. 46 80 (28) 115 269 1
O'CONNOR, B. F. S. 41 72 (26) 120 259 3
KLASSEN, J. 43 72 (26) 115 256 4
SUTHERLAND, G. A. 42 72 (26) 110 250 8
CAMERON, D. S. 43 80 (26) 100 249 9
MAJOR, W. 46 76 (26) 95 243 15
CARROLL, L. D. 37 72 (26) 100 235 19
MORIN, A. (l'app.) 33 68 (26) 100 227 27
The decision shows that Mr. Morin contended
inter alfa that, in comparison with the seven
successful candidates whose proposed appoint
ments were attacked by his appeal, he had been
undervalued. After discussing the various fac
tors involved, the Appeal Board disposed of Mr.
Morin's appeal as follows:
[TRANSLATION] The circumstances described above,
and the small point spread separating the candidates, have
raised a significant doubt as to the possibility of prejudice
to the rights of appellant. The Appeal Board considers that
by acting in this manner, that is to say by not comparing
the abilities and potential for effectiveness of the candi
dates, the Rating Board quite unwittingly erred and con
travened the provisions of section 10 of the Public Service
Employment [Act].
Considering the circumstances, the Appeal Board feels
it must intervene in this case, allows the appeal of Mr.
Morin and orders that the proposed appointments of
Messrs R. J. Brown, B. F. S. O'Connor, J. Klassen, G. A.
Sutherland, D. S. Cameron, W. Major and L. D. Carroll
not be made.
5. On July 30, 1974, a decision was rendered
under section 21 of the Public Service Employ
ment Act on an appeal brought by one T. W.
Colfer. That decision, whereby Mr. Colfer's
appeal was dismissed, reads in part as follows:
This appeal was brought by Mr. T. W. Colfer, in
accordance with Section 21 of the Public Service Employ
ment Act, against all 20 proposed appointments made as a
result of Selection Process 74-MID-IV-FS-1, FS 2 (For-
eign Service Officer), Department of Manpower and
Immigration, Ottawa and Abroad. The selections were
made through inventory identification and assessment pur
suant to Section 7(1)(b)(i) of the Public Service Employ
ment Regulations.
According to the Department's representative, the pur
pose of the selection process was to fill 20 vacancies.
The 54 candidates, not including the appellant, who met
the Basic Requirements, were assessed primarily on the
basis of the information contained in their appraisal
reports. Thirty-four candidates were found qualified. The
20 highest ranking candidates were selected for appoint
ment, in order of merit, as follows:
1. Brown, R. J. 11. Smith, W.
2. Kerr, G. J. 12. Lapointe, R.
3. O'Connor, B. F. S. 13. Woodford, E. H.
4. Klassen, J. 14. Smith, H. E.
5. McKay, K. D. 15. Major, W.
6. Drapeau, J. 16. Gray, V. P.
7. Vanderstoel, W. 17. Hamilton, I. S.
8. Sutherland, G. A. 18. Parker, H. C.
9. Cameron, D. S. 19. Caroll, L. D.
10. Marshall, E. 20. Gagnon, J. L.
The appellant was found not to meet the Basic Require
ments because he did not have "four completed annual
evaluation (appraisal) reports at present or equivalent
level." It was necessary for candidates to meet this Basic
Requirement in order to ensure that there was adequate
objective appraisal material to assess the candidates.
The appellant, through his representative, presented the
following allegations:
1. In 1972, the appellant had been assessed for an FS 2
position and the Rating Board presumably had sufficient
information on him to make an assessment. Two years and
two additional appraisal reports later it was unreasonable
for the Rating Board to conclude it had insufficient
information.
2. The Work Sharing Agreement between the Public
Service Commission and the Department stated as follows:
The Area of Competition is to include all FS 1 Officers,
while those for primary consideration will normally
include those for whom four (4) Annual Appraisal
Reports have been received at the FS 1 or equivalent
level.
The Department acted arbitrarily and inflexibly in not
exercising its discretion, permitted by the use of the word
"normally" to include officers, such as the appellant who
had joined the Department in 1969 as a developmental
officer. The Department of External Affairs had done this.
3. The Basic Requirements contravened the Selection
Standards which indicated clearly that "a specific number
of years must not be stipulated" in expressing a Basic
Requirement relative to "acceptable evidence of ability to
carry out the practical aspects of the assignment normally
indicated through work history or prior achievement". The
Rating Board's interpretation of the "four annual apprais
al" clause meant, in effect, that the candidates were
required to have completed four years of service at the FS
1 level or equivalent.
4. Some officers who had been appointed to positions
classified at the FS 1 level or equivalent in 1968 had been
promoted in 1972. As a result of the new policy relating to
four annual appraisal reports, the appellant, who had been
appointed in 1969, was unfairly deprived the opportunity
for advancement at the same pace as his confrères.
5. At the time of the selection process, the appellant had
been satisfactorily performing duties classified at the FS 2
level yet this information was not before the Rating Board
because his qualifications had not been assessed.
6. In 1972, the Department changed the training period
required from 18 months to 12 months. This decision
should have been made retroactive for the purposes of this
selection process. Had this been done, the appellant would
have met the Basic Requirements. He had three appraisal
reports at the FS 1 level or equivalent, and one annual
appraisal report in 1970 which was considered inappropri
ate presumably because for six months the appellant had
been in training.
The Department's representative replied as follows:
1. In 1974 the Department decided to change its proce
dure and to require candidates to have a minimum number
of annual appraisal reports. It was considered that more
information on the candidate would permit the Rating
Board to reach a more viable decision. The 1974 Rating
Board was not bound by the decisions made by the 1972
Rating Board.
2. Although the word "normally" did permit some flexi
bility, in the opinion of the Rating Board, there was no
valid reason to derogate from the four year minimum. The
Department was neither aware of, nor bound by the proce
dures followed in the Department of External Affairs.
3. Although the Selection Standards indicated that
time-in-level was not in itself an acceptable criterion and
that a specific number of years should not be stipulated, it
did permit the Department to specify a minimum number
of annual appraisal reports, as was done in this case.
4. The fact that the appellant's promotional opportuni
ties were delayed as compared with officers who had been
appointed one year earlier was unfortunate but did not
indicate that the Department's actions were unreasonable.
5. The Department did not agree that the appellant was
performing duties classified at the FS 2 level or that this
fact should have been considered by the Rating Board.
6. In 1972, the Department decided to reduce the train
ing period for foreign service officers to 12 months. In
1970, the appellant's position was in the Program
Administration Group (his classification was converted to
"FS" only in 1972) and it would not have been reasonable
to determine retroactively that the training period should
have been 12 months. During the first six months in 1970,
the appellant was still "in training" and his appraisal
report would not have provided particularly relevant infor
mation on the basis of which to assess him for the positions
to be filled.
The Appeal Board is satisfied with the Department's
replies to the appellant's allegations, and considers that the
appellant has not provided sufficient grounds for allowing
this appeal.
The appeal is accordingly dismissed but it is not directed
that the proposed appointments be made because of the
decision of the Appeal Board in the appeal of Mr. A.
Morin in this selection process.
6. On August 13, 1974, a letter was written by
a Mr. P. H. Sinclair, Senior Staffing Officer of
Administrative Staffing Program (according to
counsel, of the Public Service Commission) to
the Department of Manpower and Immigration,
reading as follows:
As a result of the Appeal Board's decision in respect to the
appeal of Mr. Albert Morin, it will be necessary for the
Public Service Commission to convene a second FS-2
Promotion Board.
Their responsibility will be to re-assess the qualifications
of the twenty (20) FS-2 appointees, in addition to those of
the successful applicant.
It is planned to convene this second Board at an early date,
and arrangements have been made with each of the other
two Departments to provide a Board Member at the FS-2
level.
7. On August 20, 1974, a memorandum was
sent to "Foreign Service Officers Listed Below"
(which comprised the twenty successful persons
in the original selection process and Mr. Morin)
reading as follows:
2. Following receipt of the Appeal Board decision to allow
one appeal in the 1974 FS 1 to FS 2 Promotion Program,
the Public Service Commission convened a new Selection
Board to reassess the qualifications of the 20 candidates
selected for appointment by the original Section Board as
well as the qualifications of the successful appellant. The
Board was chaired by Mr. P. Sinclair, Senior Staffing
Officer, Public Service Commission and the Board Mem
bers were Mr. H. Raymond and Mr. D. E. J. Denault,
Manpower and Immigration Foreign Service, Mr. M. G.
von Nostitz, External Affairs and Mr. Marc Lemieux,
Trade Commissioner Service, Industry, Trade &
Commerce.
3. The 20 candidates selected for promotion by the new
Board are named on the attached list with the Notice of
Right to Appeal. In this selection process the one candi
date not selected for promotion by the new Board has a
right to appeal and as stated in the attached Notice of
Right to Appeal the appeal expiry date is September 13,
1974.
and a notice of right to appeal was issued show
ing that "Mr. A. Morin, FS 1, Canadian Consu
late General, New Orleans, La., U.S.A." had
the right to appeal. (These documents seem to
have originated in the Department of Manpower
and Immigration.) The twenty candidates
named as "Selected" were those originally cho-
sen—namely, the applicants in this section 28
application and two others.
8. On September 12, 1974, Mr. Oppertshauser
wrote to the Appeals Branch in the Public Ser
vice Commission, in part, as follows:
I hereby give notice that, under Section 21 of the Public
Service Employment Act, I propose to appeal the decision
taken in
Promotion: 74-MID-ID-IV-FS 1
Classification: FS2
Department: Manpower and Immigration
Appeal Expiry Date: 13 September, 1974
I base my appeal on the grounds that my qualifications
have not been properly assessed.
9. On October 24, 1974, an Appeal Board
which was presumably established by the Public
Service Commission, rendered a decision in
respect of Mr. Oppertshauser's appeal allowing
the appeal and directing that the proposed
appointments of all twenty persons selected not
be made. The Appeal Board dealt first with the
contention that had been made before it that
Mr. Oppertshauser had no right of appeal at
that particular stage. After quoting section 21,
the Board's reasons deal with this question as
follows:
Within the context of the instant case, the significant
features of the foregoing provision are that every unsuc
cessful candidate who considers himself aggrieved by an
appointment has the right of appeal and that if an appeal
is allowed, the appointment must be revoked or not made.
The evidence shows that, as a result of Mr. Morin's
appeal being allowed, the Public Service Commission
decided not to make any of the 20 appointments proposed
by the first Rating Board. Those proposed appointments
were, in the opinion of this Appeal Board, thereby can
celled. Therefore, notwithstanding the fact that the find
ings of the second Rating Board served to confirm those of
the first Rating Board (in that the same 20 candidates
were again selected for appointment although the order of
merit was changed), this Appeal Board considers that the
appointments proposed by the second Rating Board are, in
fact, new appointments. It follows, therefore, from Section
21 of the Act that since new appointments have been
made, all unsuccessful candidates in this selection process
have the right to appeal these appointments.
It would appear, however, that the Department is cor
rect in claiming that in Case No. 657 of Selected Appeal
Board Decisions, the Appeal Board took the view that
unsuccessful candidates in a competition who did not
exercise their right to appeal the selections made by the
first Rating Board did not have the right to appeal against
the same persons if they were subsequently selected again
as a result of a re-examination. If this is a correct interpre
tation of that decision, this Appeal Board, for reasons
already given, does not share that opinion.
For the foregoing reasons, this Appeal Board ruled that
Mr. Oppertshauser, as an unsuccessful candidate in this
selection process, did enjoy the right to appeal the findings
of the second Rating Board. The Appeal Board, therefore,
proceeded to conduct an inquiry into the appellant's
allegations.
The Appeal Board then dealt with the appeal on
the merits as follows:
The appellant contended, inter alia, that at the time of
the first selection process in April 1974, he had had about
three and one-half years' experience in the Department at
the FS 1 level or equivalent. In each of the last two years
he had been rated "outstanding" on his appraisal reports.
Yet his qualifications had not been considered by either
the first Rating Board or the second Rating Board. The
reason for this apparently was that he failed to meet the
Basic Requirement of "four annual evaluation (appraisal)
reports at FS 1 or equivalent level". This requirement was
contrary to the applicable Selection Standards for the FS
Group which clearly indicated, on page 4, that "a specific
number of years must not be stipulated" when expressing a
Basic Requirement relative to "acceptable evidence of
ability to carry out the practical aspects of the assignment
normally indicated through work history or prior achieve
ment". In other words, in his view, there was absolutely no
difference between the requirement of "four annual
appraisals at the FS 1 level or equivalent" and a require
ment of four years of service at the FS 1 level or equiva
lent. The Department's decision to eliminate him for fail
ing to meet the requirement of "four annual appraisals"
was, therefore, illegal.
The Department's representative replied that the Work
Sharing Agreement between the Public Service Commis
sion and the Department stated as follows:—
The Area of Competition is to include all FS 1 Officers,
while those for primary consideration will normally
include those for whom four (4) Annual Appraisal
Reports have been received at the FS 1 or equivalent
level.
It was true that the setting of an apparently quantitative
standard was not permitted by the Selection Standards
prescribed for most occupational groups. However, the
Foreign Service Selection Standards were quite specific on
the applicability of this practice to the Foreign Service
Group. In this connection, the Department's representative
directed the Appeal Board's attention to the following
paragraph set out on page 8 of the Foreign Service Selec
tion Standards under the heading Group Description:
While time-in-level is in itself not an acceptable criteri
on for consideration for promotion, it is recognized that
decisions on promotion can be fair and meaningful only
if officers have served long enough in a level to enable
management to properly assess their knowledge, abili
ties, and their potential for performance at the next
higher level. In order to ensure that there is adequate
objective appraisal material, evaluation for promotion
will normally only be possible after an officer has
received a specified minimum number of annual
appraisal reports at his current level. In reaching promo
tion decisions Management will consider all appraisal
reports received at an officer's current level together
with his previous Foreign Service career record.
This showed that although time-in-level was not in itself
an acceptable criterion for promotion, the Department
could, nevertheless, require candidates to have a minimum
number of annual appraisal reports. The criterion of four
annual appraisals was established because it was felt that
this amount of appraisal material on each candidate was
essential in order to make a fair and meaningful assess
ment. The appellant was eliminated because his personal
file showed that he did not have four completed FS 1 level
annual appraisal reports.
The Department's representative added that the issue of
whether it was legal to eliminate candidates for not having
at least four annual appraisals at the FS 1 level had been
raised by another appellant in connection with an appeal
brought against the findings of the first Rating Board. The
Department's reply to the allegation in that case was
substantially the same as the Department's reply in this
case. The Appeal Board in that case declared itself satis
fied with the Department's reply and found no reason on
which to allow the appeal. There was therefore no reason
why the Department's reply should be unacceptable to the
Appeal Board in the instant case.
Notwithstanding the findings of any other Appeal
Board, this Appeal Board, after reviewing the evidence
submitted, cannot accept the Department's reply to the
appellant's allegation. The Appeal Board notes that Sec
tion 10 of the Public Service Employment Act provides
that "appointments to or from within the Public Service
shall be based on selection according to merit, as deter
mined by the Commission". Section 12 of the Act permits
the Public Service Commission, in determining pursuant to
Section 10 the basis of assessment of merit, to prescribe
selection standards "as to education, knowledge, experi
ence, language, age, residence or any other matters that, in
the opinion of the Commission are necessary or desirable
having regard to the nature of the duties to be performed".
In the opinion of the Appeal Board, these provisions
clearly show that, if the Public Service Commission had
wished to set out promotion criteria in terms of years of
work experience, it would have been intra vires its power
under the Act to do so. However, the material before this
Appeal Board leads it to conclude that the applicable
Selection Standards for the Foreign Service Group, in fact,
prohibit the use of quantitative standards as a basis for
consideration for promotion.
In this connection, the Appeal Board considers it signifi
cant to note that the December 1971 edition of the Foreign
Service Selection Standards (Interim), on page 4, under
Basic Requirements, sets out the following criterion for
initial screening of candidates:
acceptable evidence of ability to carry out the practical
aspects of the assignment normally indicated through
work history or prior achievement.
In the November 1973 edition of the Foreign Service
Selection Standards (the edition used in this selection
process), the above requirement has been clarified to read
as follows:—
acceptable evidence of ability to carry out the practical
aspects of the assignment normally indicated through
work history or prior achievement; this requirement may
be expressed in terms of experience; descriptive adjec
tives may be used, but a specific number of years must
not be stipulated. (Underlining added.)
There is no doubt in the mind of the Appeal Board that
the above underlined prohibition is not directed only
against the use of terminology in which a specific mini
mum number of years' work experience is stipulated. In
the opinion of the Appeal Board, the statements added to
the Basic Requirement in the 1973 edition of the Foreign
Service Selection Standards show that it was the Public
Service Commission's clear and unequivocal intention to
prohibit the use of any quantitative criteria as a basis of
consideration for promotion. In other words, the Appeal
Board considers that if the prohibition against stipulating
a specific number of years is to have any meaningful
effect, it must be interpreted as prohibiting the use of any
criterion which has the effect of requiring candidates to
meet certain minimum time-in-level requirements before
they can be considered for promotion. Indeed, interpreting
the prohibition concerned in this way is quite consistent
with the general concept of the applicable Selection Stand
ards as set out on page 2 as follows:—
Selection standards must provide criteria to ensure con
sistency, objectivity, and reasonable uniformity in staff
ing activities throughout the Public Service; be suf
ficiently flexible and adaptable to facilitate placement;
and meet the legislative requirement to be "not incon
sistent with the classification standards" established by
the Treasury Board. Knowledge, abilities and personal
attributes, therefore, are defined in broad terms appli
cable to all assignments in a level and must be interpret
ed by focusing on specific requirements. This qualitative
approach which is fundamental to the concept of the
standards is substituted throughout for educational
achievement in terms of years in school or an education
certificate or diploma, and years of work experience.
Such quantitative criteria are normally a reflection of
the average time required by an average person to reach
a required level of competence. They tend to become
inflexible and irevent staffin_ officers from sualif in.
above-average candidates who achieve the breadth of
knowledge, abilities and capability in a shorter time.
(Underlining added.)
The Appeal Board notes the Department's representa
tive has taken the position that although the Selection
Standards indicated that a specific number of years should
not be stipulated, they did permit the Department to
specify a minimum number of annual appraisal reports. In
other words, although it was not permitted to eliminate
candidates for not having had four years' service at the FS
1 level, it was permitted to eliminate candidates for not
having had at least four annual appraisal reports (which
could only be accumulated at the rate of one appraisal
report per 12-month period) at the FS 1 level. The Appeal
Board is not impressed with this argument and considers
that the term "four years' experience at the FS 1 level"
and "four annual appraisal reports at the FS 1 level" are
synonymous in that the effect of each is exactly the same,
namely, to eliminate candidates who have not had at least
four years' service at the required level.
To support its case, the Department has referred the
Appeal Board to the following excerpt from the Selection
Standards:—
While time-in-level is in itself not an acceptable criteri
on for consideration for promotion, it is recognized that
decisions on promotion can be fair and meaningful only
if officers have served long enough in a level to enable
management to properly assess their knowledge, abilities
and their potential for effective performance at the next
higher level. In order to ensure there is available ade
quate objective appraisal material, evaluation for pro
motion will normally only be possible after an officer
has received a specified minimum number of annual
appraisal reports at his current level. In reaching promo
tion decisions Management will consider all appraisal
reports received at an officer's current level together
with his previous foreign service career record.
This paragraph indicates clearly the importance of
having adequate objective appraisal material on candidates
in order to ensure fair and meaningful decisions on promo
tion and that "evaluation for promotion will normally only
be possible after an officer has received a specified mini
mum number of appraisal reports at his current level".
However, the Appeal Board can find nothing in this
paragraph to justify the decision to automatically elimi
nate a candidate simply because he does not have a
specified minimum number of annual appraisal reports on
his personal file. In this connection, the Appeal Board
notes the above paragraph again reiterates that "time-in-
level is in itself not an acceptable criterion for consider
ation for promotion". Furthermore, the Appeal Board can
find nothing in the Foreign Service Selection Standards
which prevents the Department from supplementing (or
substituting) appraisal material with other sources of
information where this is necessary to ensure a fair and
meaningful assessment.
In the instant case, the evidence shows that the appel
lant joined the Department in 1969 and at the time of this
selection process, he had had about three and one-half
years' service at the FS 1 level or equivalent. Yet he was
eliminated for not having "four annual appraisal reports at
the FS 1 level or equivalent". For reasons already given,
the Appeal Board considers that this requirement is tan
tamount to a four-year time-in-level requirement which is
specifically prohibited by the prescribed Selection Stand
ards. It, therefore, follows that the Department's decision
to eliminate the appellant for failing to have "four annual
appraisal reports at the FS 1 level or equivalent" was
illegal.
For the foregoing reasons, the Appeal Board considers it
necessary to intervene in this case. The appeal is accord
ingly allowed and it is directed that the proposed appoint
ments be not made.
This section 28 application is an application for
an order setting aside the latter decision.
III. LEGAL PROBLEMS RAISED BY THIS APPLICA
TION
The steps recited in Part II may be summarized
as follows:
1. Officers in the Department of Manpower and
Immigration described as "Career Rotational
Foreign Service Officers" were apparently
blocked off, in the manner contemplated by
regulation 12, for the proposed "exercise"
designed to bring about certain promotions to
FS 2 positions (memorandum of December 21,
1973).
2. Prospective candidates were informed that
"qualification requirements" for the FS 2 levels
were contained in the Public Service Commis
sion Selection Standards for the FS occupation
al group (memorandum of December 21, 1973).
This might have been intended as the notice
given to comply with regulation 6 but we find
the "Sharing Arrangement" between the
Department and the Commission of March,
1974, adding the requirement that "those for
primary consideration will normally include
those for whom four (4) Annual Appraisal
Reports have been received ...".
3. The Appeal Board on the Morin appeal
determined, in effect, that, as between Morin
and the seven persons against whose proposed
appointment Morin had appealed, the final step
in the process, that of determining relative
"merit" in accordance with the selection stand
ards as required by regulation 7(4)(a), had not,
as a matter of fact, been carried out
satisfactorily.
4. The Appeal Board on the Golfer appeal held
that Colfer had no ground for complaint when
he was excluded, as not meeting the basic
requirements (presumably under regulation
7(3)(a)) because he did not have four completed
annual evaluation reports, a requirement which,
according to the Appeal Board, was imposed by
the Department and permitted by the "Selection
Standards".
5. The Public Service Commission, as a result
of the decision on the Morin appeal, decided to
convene a second "FS-2 Promotion Board" to
"re-assess the qualifications" of the twenty
"appointees" in addition to those of Morin.
6. The second Promotion Board having re
assessed the original twenty as being relatively
more meritorious than Morin, Oppertshauser,
who like Colfer had been found not to be quali
fied as a candidate because he did not have four
annual evaluation reports, purported to
"appeal" and the Public Service Commission
established an Appeal Board to hear his
"appeal".
7. The Appeal Board in the Oppertshauser
appeal held
(a) that _ Oppertshauser was entitled to
appeal, and
(b) that, contrary to the Selection Standards,
Oppertshauser had wrongly been eliminated,
presumably at the regulation 7(3)(a) stage;
and directed that the proposed twenty appoint
ments not be made. (This decision was avowedly
contrary to that of the Appeal Board in the
Golfer appeal.)
Part of the confusion in my mind in this case
arises from the fact that the "Selection Standards"
of the Public Service Commission, which were
presumably made, if they had any legal status at
all, under section 12 of the Public Service
Employment Act, were, apparently, used as
"qualifications" for appointment for the purpose
of identifying "candidates" under regulation
7(3)(a). Ordinarily, one would have thought that
"qualifications" required to perform the duties of
a particular employment and the "selection stand
ards" used under regulation 7(4)(a) to assess
"relative merits" of "applicants identified as can
didates" because they have been found to meet
those "qualifications" would be two quite distinct
things. I can only conclude from what has been
brought out in this case that, as a hang-over from
the pre-1967 days, there still exist documents
issued by the Public Service Commission, called
"Selection Standards", that set out the qualifica
tions for certain positions, as opposed to selection
standards for determining relative merit among
candidates who have those qualifications; and that,
in this case, the Department concerned has, by
reference, adopted such a document for a state
ment of qualifications required by the Department
for the positions in question. It would also seem
that the Department added thereto the require
ment concerning four reports. (That does not mean
that I am foreclosing the possibility that a more
searching inquiry would have produced documents
that would have shown quite a different state of
affairs.)
The second confusing aspect of this case is that
the Public Service Employment Act is less than
comprehensive in its express statement of the
result of an appeal under section 21 of the Act.
What it says, as applied to the Morin appeal, is
that the Commission shall "not make" the pro
posed appointments there attacked. Presumably,
this is not a perpetual prohibition of such appoint
ments even though it is so worded. A possible view,
and, I might say, the obvious view, is that what
was intended in such a case was to set aside the
whole selection process so that it would have to
start from the beginning. However, having regard
to the administrative nature of the matter, and the
injury to the public interest caused by undue
delay, I am of the view that the statute should be
interpreted as implying a power in the Commission
to take such steps as, in its view, are necessary to
remedy the defects found by the Appeal Board,
and thus put itself in a position to make the
proposed appointments as soon as possible after
complying with the requirements of the law. In my
view, the appointment of the new Promotion Board
after the Morin appeal, and the instructions given
to it, should be regarded as falling within that
implied power.
Coming then to the specific questions raised
concerning the validity of the Oppertshauser
Appeal Board decision attacked by this section 28
application, these are, in effect,
(a) did Oppertshauser have a right to appeal?
and
(b) if he did was the Appeal Board wrong in
law in directing that the proposed appointments
not be made?
A perusal of section 21 of the Public Service
Employment Act shows that to be a person who
had a right to appeal against a proposed appoint
ment where the selection of the person for appoint
ment was made from within the Public Service
without competition, a person had to be a "person
whose opportunity for advancement, in the opinion
of the Commission, has been prejudicially affect
ed". In my opinion, the better view is that this
means "prejudicially affected" by the "selection"
leading to the appointment or proposed appoint
ment. That this was the view of the authority by
whom the notice of right of appeal was issued with
the memorandum of August 20, 1974, is apparent
from the fact that this notice was sent only to Mr.
Morin. As this was a Public Service Commission
appointment, it might be presumed that that view
represented the "opinion" of the Public Service
Commission for the purposes of section 21. On the
other hand, when Oppertshauser purported to
appeal, the Public Service Commission purported
to establish an Appeal Board to hear his appeal
under section 21 and that act might be presumed
to reflect the "opinion" of the Public Service Com
mission for the purpose of section 21. 8 If the
matter were to turn on this question and there was
8 I am not overlooking regulations 40A, 40s and 41, which
purport to lay down rules to determine who may appeal under
section 21. In my view, such regulations cannot have legal
effect to determine who has such a right of appeal. That right is
conferred, in a case such as the present, on a person "whose
opportunity for advancement, in the opinion of the Commis
sion, has been prejudicially affected" and not on a person
whose opportunity for advancement is, according to Regula
tions made by the Commission, deemed to have been prejudi-
cially affected.
any room for doubt, in my view, the matter should
be referred back to the Appeal Board to continue
its inquiry by obtaining an explicit statement of
opinion by way of a resolution from the Public
Service Commission as to whether Oppertshauser's
opportunity of advancement had been prejudicially
affected by the selection of the twenty candidates
who were selected by the second Promotion Board.
Having regard to the terms of reference to the
second Promotion Board, if the view that I have
suggested as being the better view as to the mean
ing of section 21 in relation to the facts of this case
is the correct view, there would be no basis on
which it could be concluded that anyone other
than Mr. Morin had a right to appeal and the
Appeal Board's decision would have to be set aside
on the ground that Mr. Oppertshauser had no
right of appeal. In my view, it is not necessary to
dispose of the matter on that ground and I, there
fore, express no final view on that question.
I prefer to deal with the matter on the merits.
The appeal was allowed by the Appeal Board on
the ground that the requirement of four annual
reports as a qualification for the position was
invalid as being contrary to the "Selection Stand
ards". In my view, the decision attacked is wrong
in so holding. In the first place, the Department
was not bound, in establishing qualifications, to do
so subject to the "Selection Standards" adopted by
the Commission. In the second place, the portion
of the latter document relied upon by the Appeal
Board was not a part of the standards established
thereby and did not purport to have operative
effect. Finally, even the part of the document
relied upon by the Appeal Chairman, when read as
a whole, does allow a requirement of a fixed
number of reports even though this indirectly may
result in the requirement of a certain minimum
experience.
In reaching this conclusion, I think it is impor
tant to bear in mind that the section 21 appeal
procedure is an administrative review of an
administrative process and should be conducted
with a view to finding and correcting injustices and
not so as blindly to create technical difficulties and
delays. Administrative documents should not be
read "microscopically" but with a view to extract
ing the meaning that must have been intended by
the administrators by whom they were created. It
is from this point of view that I have read the
words "those for primary consideration will nor
mally include those for whom four ... Reports
have been received ..." as words of qualification
(i.e., as a requirement of four reports subject to an
administrative discretion to waive it in exceptional
circumstances) although, were those words found
in a legal instrument, I should have been inclined
to the view that they were insufficient to convey
any understandable meaning.
CONCLUSION
In my opinion, the section 28 application should
be allowed, the decision of the Appeal Board
should be set aside, and the matter should be
referred back to the Appeal Board with a direction
that the appeal to the Appeal Board should be
dismissed.
* * *
PRATTE AND URIE JJ.: For the reasons men
tioned in the third last paragraph of the Chief
Justice's reasons, we would dispose of this applica
tion in the way suggested by the Chief Justice.
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.