A-191-78
David W. Menear (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Urie and Ryan JJ. and Kerr
D.J.—Ottawa, June 23 and 26, 1978.
Judicial review — Public Service — Position temporarily
filled by person in acting capacity — Before person in acting
capacity deemed appointed to position, right to appeal selec
tion advertised to all persons whose opportunity for advance
ment could have been prejudicially affected — Applicant not a
member of Public Service at time of selection — Public
Service Commission Appeal Board decided applicant did not
have right to appeal the decision — Whether or not that
decision should be set aside — Public Service Employment
Act, R.S.C. 1970, c. P-32, s. 21 — Public Service Employment
Regulations, SOR/67-129, ss. 27, 41 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
A temporary vacancy occurred in August 1977 in a position
within the Public Service and a qualified person was selected to
fill that vacancy in an acting capacity commencing September
1. When it became apparent in January 1978 that the incum
bent would not return to the position for a further indetermi
nate period, the Department decided to bring to the attention of
every person whose opportunity for advancement might have
been prejudicially affected, the right to appeal the selection.
Applicant, who was appointed to a position within the Public
Service, on September 21, after the selection, appealed the
selection pursuant to section 21 of the Public Service Employ
ment Act. The Appeal Board found the candidate not eligible to
be a candidate because he was not an employee of the Public
Service at the time of selection and could not be deemed to be a
person whose opportunity for advancement was prejudicially
affected. This section 28 application is to review and set aside
that decision.
Held, the application is allowed. Reading section 21 of the
Act together with sections 27 and 41 of the Regulations, it is
clear that an employee is "selected" to fill a temporary vacancy
and when that vacancy is permanently filled an "appointment"
is deemed to have been made. Their purpose is to enable
management to fill temporary vacancies without having the
selection of the employee to fill such vacancy challenged by
other employees resorting to the Regulations providing appeal
rights which are normally available to employees when perma
nent positions are filled from within the Public Service without
competition. Section 27 of the Regulations effectively pre
scribes the time limits for such temporary employment and
deems that an appointment to the position has been made after
the expiration of the time limits if the permanent incumbent of
the position has not returned to it, with concomitant rights to
appeal for those other persons flowing therefrom. Since appli
cant was employed in the Public Service at the time the
appointment became effective, he is entitled, under section
21(b), to appeal that appointment by demonstrating that his
opportunity for advancement had been prejudicially affected.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. and Andrew Raven
for applicant.
Walter L. Nisbet, Q.C. for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General • of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of an Appeal Board
established pursuant to the provisions of section
5(d) of the Public Service Employment Act,
R.S.C. 1970, c. P-32.
Counsel for the respondent agreed that the
statement of facts contained in the applicant's
memorandum of fact and law is accurate so that
for convenience sake I will set that statement out
in full:
1. In the month of August, 1977, a temporary vacancy
occurred in the position of Principal, Department of .Indian
Affairs and Northern Development at Fort George, Quebec. As
this position had to be filled for the beginning of the school
term, which commenced on September 1, 1977, and as it was
uncertain when the incumbent would return to his regular
position, the Department assessed, found qualified and selected
one Michael Sidon to fill, in an acting capacity, the vacant
position.
2. Mr. Sidon was to commence performing the duties of this
"higher" position on September 1, 1977.
3. On the 21st day of September, 1977, the Applicant David
W. Menear commenced his employment with the Department
of Indian Affairs and Northern Development as a Vice-Princi
pal in Fort George, Quebec.
4. In January, 1978, it became apparent that the incumbent
would not return to his position for a further indeterminate
period of time and as a consequence, the Department decided
to bring to the attention of every person whose opportunity for
advancement might have been prejudicially affected, the right
to appeal the selection of Mr. Sidon.
5. By letter dated February 7, 1978, the Applicant appealed,
pursuant to Section 21 of the Public Service Employment Act,
the acting appointment of the said Michael Sidon.
6. An Appeal Board was established and a hearing conducted
at Quebec City on March 21, 1978, before Marcel Benard,
Esquire, Chairman. On March 29, 1978, the Chairman ren
dered his Decision.
7. In and by the said Decision, the Applicant's appeal was
dismissed. In the course of his Reasons, the Chairman stated:
"In conclusion, the Appeal Board finds that the appellant
was not eligible to be a candidate because he was not an
employee of the Public Service at the time of selection and
cannot be deemed to be a person whose opportunity for
advancement was prejudicially affected. The appeal of Mr.
David W. Menear is therefore dismissed."
It is that decision which the applicant seeks to
set aside.
It is common ground that the sole issue in the
application was correctly stated by the Appeal
Board as follows:
The issue to be resolved in this case concerns the eligibility of
the appellant to be a candidate and consequently the effective
date of the acting appointment of Mr. Sidon.
From the issue thus stated, two questions must
be answered in the affirmative for the applicant to
succeed. They are:
1. When was Michael Sidon appointed to the
principal's position at Fort George, Quebec?
2. Was David W. Menear an employee of the
Department of Indian Affairs and Northern De
velopment at the time of Mr. Sidon's appoint
ment?
Section 21(b) of the Public Service Employ
ment Act' provides that when a person is appoint
' 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,
(Continued on next page)
ed or is about to be appointed under the Act, and
the selection of the person for appointment was
made from within the Public Service, without com
petition, 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 Public Service Commission to conduct an
inquiry. Thus a person dissatisfied with an
appointment must establish that his opportunity
for advancement was prejudicially affected by the
appointment.
Sections 27 and 41(1) of the Public Service
Employment Regulations, SOR/67-129, read as
follows:
27. (1) Subject to subsection (2), where an employee is
required by the deputy head to perform for a temporary period
the duties of a position having a higher maximum rate of pay
(hereinafter referred to as the "higher position"), than the
maximum rate of pay for the position held by him, the
employee shall be considered to have been appointed to the
higher position in an acting capacity, and
(a) if the higher position is classified in the occupational
category referred to in the Public Service Staff Relations
Act as the operational category and the temporary period is
four months or more,
(b) if the higher position is classified in the occupational
category referred to in that Act as the administrative support
category and the temporary period is three months or more,
or
(c) if the higher position is classified in an occupational
category other than an occupational category mentioned in
paragraphs (a) and (b) and the temporary period is two
months or more,
the employee shall be deemed, for the purposes of sections 12
and 41, to have been appointed to the higher position without
competition, effective as of the last day of,
(d) in the case mentioned in paragraph (a), the period of
four months from,
(e) in the case mentioned in paragraph (b), the period of
three months from, and
(f) in the case mentioned in paragraph (c), the period of two
months from
the day on which he commenced to perform the duties of the
higher position.
(2) An appointment to a position in an acting capacity shall
not be made for a period of more than twelve months unless
authorized by the Commission in any case or class of cases.
(Continued from previous page)
(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.
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 deter
mined 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.
It was the respondent's contention in support of
the decision of the Board, that the time for the
ascertainment of those persons whose opportunity
for advancement has been prejudicially affected by
the appointment is the day upon which the selec
tion was made of the employee to fill the tempo
rary vacancy, in this case on September 1, 1977.
Those persons so ascertained would not be entitled
to appeal the "selection" until the "appointment"
became effective and that would not be before
November 1, 1977 when, by virtue of the deeming
provisions of section 27(1)(c) and (f), it would be
effective. In fact, they might never have an oppor
tunity to exercise that right of appeal if the tempo
rary filling of the vacancy did not extend longer
than two months. Thus, since the applicant did not
commence his employment until after Michael
Sidon was selected to fill the vacancy, he was not
eligible to appeal.
With respect, I am unable to agree with this
view. Reading section 21 of the Act together with
sections 27 and 41 of the Regulations, it is clear
that an employee is "selected" to fill a temporary
vacancy and when that vacancy is permanently
filled an "appointment" is deemed to have been
made. It seems to me that their purpose is to
enable management to fill temporary vacancies
(which can occur in any organization for an infi
nite number of reasons), without having the selec
tion of the employee to fill such vacancy chal
lenged by other employees resorting to the
Regulations providing appeal rights (sections 12
and 41) which are normally available to employees
when permanent positions are filled from within
the Public Service without competition. Section 27
of the Regulations effectively prescribes the time
limits for such temporary employment and deems
that an appointment to the position has been made
after the expiration of the time limits if the perma
nent incumbent of the position has not returned to
it, with concomitant rights of appeal for those
other persons flowing therefrom. To argue other
wise, it seems to me, renders section 27 virtually
meaningless.
If that view is correct, Michael Sidon's appoint
ment by section 27 became effective on November
1, 1977. Since at that time the applicant was
employed in the Public Service, under section
21(b) of the Act, he was entitled to appeal the
appointment of Michael Sidon by demonstrating
that his opportunity for advancement had been
prejudicially affected. The application, thus, in my
view, must be allowed.
I recognize that this result can lead to some
rather unusual situations such as where a person
may be eligible to appeal who became employed in
the Public Service only a day or two before the
appointment became deemed to have been made.
However, on the appeal itself, the merits of the
respective candidates must be judged in any event,
so that the unusual, but perhaps rare, situations,
will have the effect only of slightly increasing the
numbers of appellants.
The section 28 application should thus be
allowed and the matter should be remitted to the
respondent with the direction that it should find
the applicant to be eligible to appeal the appoint
ment of Michael Sidon to the position in issue.
* *
RYAN J.: I concur.
* * *
KERR D.J.: I agree.
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.