A-789-77
Rejean Yergeau (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, April 14 and 24, 1978.
Judicial review — Application to set aside decision of
Public Service Commission Appeal Board — Ruling that
applicant not entitled to appeal appointment of another public
servant to position — No inquiry as to prejudicial effect on
applicant's opportunity for advancement — Assumption that s.
41(3)(a) of Regulations equivalent to such opinion — Error in
law — Public Service Employment Act, R.S.C. 1970, c. P-32,
s. 21 — Public Service Employment Regulations, SOR/67-
129, s. 41(3)(a) as am. — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is an application to review and set aside a ruling of the
Public Service Commission Appeal Board. Applicant, a public
servant, appealed under section 21 of the Public Service
Employment Act against the appointment without competition
of another public servant, Belinge, to the position of radio
operator. The Board, basing its decision on section 41(3)(a) of
the Public Service Employment Regulations, ruled that appli
cant was not entitled to appeal against Belinge's appointment
without determining if applicant's opportunity for advancement
had been prejudicially affected by that appointment.
Held, the application is allowed. Under section 21(b) of the
Public Service Employment Act, applicant had the right to
lodge an appeal unless, "in the opinion of the Commission", his
opportunity for advancement had not been prejudicially affect
ed by Belinge's appointment. The Appeal Board erred in
assuming section 41(3)(a) of the Regulations was equivalent to
such an opinion from the Commission. The opinion to which
section 21 refers is one that must be formulated by the Com
mission (or by the public servants to whom it assigns this task)
in each individual case with due regard for all the circum
stances of the case. The Board, therefore, erred in law in
deciding that the applicant was not entitled to appeal.
Brown v. Public Service Commission [1975] F.C. 345,
referred to.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C., for applicant.
Paul Plourde for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for decision delivered orally by
PRATTE J.: Applicant belongs to the Public
Service. He is appealing, under section 21 of the
Public Service Employment Act', against the
appointment of another public servant, named
Belinge, to the position of radio operator in La
Grande, Quebec. The Board established by the
Public Service Commission to hear this appeal
ruled that applicant was not entitled to appeal
against Belinge's appointment. It is this decision
that applicant seeks to have set aside pursuant to
section 28.
It is established that Mr. Belinge was appointed
without a competition. In such a case, section 21 of
the Public Service Employment Act provides that
the right of appeal belongs to "every person whose
opportunity for advancement, in the opinion of the
Commission, has been prejudicially affected". 2
In the case at bar, it does not appear that the
Commission ever determined whether applicant's
opportunity for advancement had been prejudicial-
ly affected by Belinge's appointment. Nor does it
appear that the Commission gave the Appeal
' R.S.C. 1970, c. P-32.
2 Section 21 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 appoint
ment 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.
Board the task of doing so. The decision a quo is
not, therefore, based on an opinion expressed by
the Commission about the effects of Belinge's
appointment; nor is it based on an opinion that the
Appeal Board, as the Commission's representative,
had formed on this point. This decision was based
on section 41(3)a) of the Public Service Employ
ment Regulation ' , which states that there shall be
deemed to be "no person whose opportunity for
advancement has been prejudicially affected", for
the purposes of section 21, "where the selection of
a person for appointment is made from within the
Public Service without competition ... to a reclas
sified position held by that person immediately
prior to the reclassification". 4
It is not disputed that Belinge, at the time of his
appointment, was already a member of the Public
Service and that the position to which he was
appointed was a reclassified position. Further,
although counsel for the applicant claimed other
wise, it is clear that Belinge held this position prior
3 SOR/67-129 as am. by SOR/69-592. -
4 Section 41 of the Regulations reads as follows:
41. (1) Where the selection of a person for appointment is
made from within the Public Service without competition,
every person who would have been eligible to compete if a
closed competition had been held to fill the position, as
determined pursuant to section 12, shall, for the purposes of
section 21 of the Act, be deemed to be a person whose
opportunity for advancement has been prejudicially affected.
(2) The responsible staffing officer, as soon as practicable
after the selection of a person mentioned in section 40A or
subsection (1) of this section is made, shall, in writing or by
public notice, bring to the attention of every person whose
opportunity for advancement has been prejudicially affected
(a) the name of the person selected for appointment, and
(8) the right of every such person to appeal, under section
21 of the Act, against the appointment, and the .time, as
prescribed by section 42 of these Regulations, within
which the appeal must be brought.
(3) This section and section 12 do not apply where the
appointment of a person is made from within the Public
Service without competition
(a) to a reclassified position held by that person immedi
ately prior to the reclassification,
(b)- to a position for which the maximum rate of pay does
not exceed the maximum rate of pay for the position held
by that person immediately prior to the appointment, or
(c) where that person is appointed by virtue of subsection
(3) of section 29, subsection (1) or (2) of section 30, or
subsection (3) or (4) of section 37 of the Act;
and in such cases there shall be deemed to be no person
whose opportunity for advancement has been prejudicially
affected.
to its reclassification. The Appeal Board did not,
therefore, err in ruling that Belinge was a person
described in section 41(3)(a) of the Regulations. It
does not, however, follow that the decision a quo is
correct.
Under section 21(b) of the Act, applicant had
the right to lodge an appeal unless, "in the opinion
of the Commission", his opportunity for advance
ment had not been prejudicially affected by
Belinge's appointment. The Appeal Board
assumed that section 41(3)(a) of the Regulations
was equivalent to such an opinion from the Com
mission, and this is where it erred. 5 In my view,
the opinion to which section 21 refers is one that
must be formulated by the Commission (or by the
public servants to whom it assigns this task) in
each individual case with due regard for all the
circumstances of the case. We must therefore con
clude that the Board erred in law in deciding that
applicant was not entitled to appeal.
For these reasons, I would set aside the decision
a quo and refer the case back to the Board for
inquiry and a ruling, if need be, after the Commis
sion has given its opinion on whether, section 41 of
the Regulations apart, applicant's opportunity for
advancement has been prejudicially affected by
the appointment he wishes to appeal.
• * *
JACKETT C.J. concurred.
* * *
LE DAIN J. concurred.
5 See Brown v. Public Service Commission [1975] F.C. 345,
at p. 373, note 8.
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.