A-669-78
Yvon Blais, Renald Couture and Alain Martel
(Applicants)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Pratte, Ryan and Le Dain JJ.—
Ottawa, March 30 and May 3, 1979.
Judicial review — Public Service — Application to set aside
respondent's dismissal of applicants' appeal against appoint
ments made following closed competition held in accordance
with Public Service Employment Act — Applicants contend
that Board's refusal to "allow appellants' representative to
question the representatives of the Department in its presence"
not in accordance with Board's duty to conduct inquiry pursu
ant to s. 21 — Applicants also argue that Appeal Board
unduly limited scope of its inquiry by refusing to require
members of selection committee to produce notes taken during
interviews with various candidates — Application dismissed
— Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C. for applicants.
J. P. Malette for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli
cants.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicants are asking that a decision
of an Appeal Board, acting pursuant to section 21
of the Public Service Employment Act, R.S.C.
1970, c. P-32, be set aside. By that decision the
Board dismissed applicants' appeal against
appointments to be made following a closed com
petition held in accordance with the provisions of
the Public Service Employment Act.
Section 21 of the Public Service Employment
Act 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.
Counsel for the applicants submitted two argu
ments in support of this appeal.
First, he contended that the Board failed in its
duty to conduct an inquiry in accordance with
section 21, when it refused to "allow appellants'
representative to question the representatives of
the Department in its presence".
In order to understand this contention it is
necessary to read the first part of the decision a
quo, and in particular the following passage:
[TRANSLATION] Following the Department's observations,
the chairman of the appeal board asked appellants' representa
tive whether he had any questions. He suggested the latter
should choose a reasonable number of target questions on the
basis of which the inquiry could be developed. Appellants'
representative asked for the answers by appellants and the
candidate selected to seventeen of the nineteen questions asked
at the interview. The chairman of the appeal board said that
such an exercise far exceeded the inquiry which he was
required to conduct, and told appellants' representative that
unless there were specific reasons for doing so, he would not
proceed in this manner. The appeal board said that points of
information were involved, and adopted the procedure of leav
ing appellants and the Department together for an exchange of
information, so that the inquiry could be developed on the basis
of specific allegations. Appellants' representative objected to
this procedure and cited a Federal Court case, without saying
which one. The objection was dismissed by the chairman of the
appeal board, as no valid reason was submitted. The parties
then spent about two hours in this exchange of information,
without the appeal board being present.
Allegations:
After examining the Department's observations, appellants'
representative set forth the following allegations:
Reading this passage of the decision and placing
it in its context, I cannot agree with counsel for the
applicants that the Board refused to conduct the
inquiry required by the Act. It would seem rather
that, in order to shorten the inquiry and avoid
needless interrogation, the Board simply required
the parties to proceed with an exchange of infor
mation, without the Board being present, so that
applicants could explain the grounds for their
appeal. In the circumstances of the case at bar, I
find nothing improper in this procedure.
Applicants' second argument was that the
Appeal Board unduly limited the scope of its
inquiry, by refusing to require members of the
selection committee to produce the notes they had
made at the interviews held with the various
candidates.
In order to assess the weight of this argument, it
must be understood that applicants' representative
before the Board had argued that the notes made
by members of the committee were too brief,
because they contained no summary of the answers
given by the various candidates. This brevity,
applicants' representative maintained, was incom
patible with an assessment based on merit. After
the Department's representatives had refused—for
reasons difficult to understand—to produce the
notes in question, the Board refused to require that
they be produced and dismissed applicants'
grievance.
In my opinion the Board did not, by deciding in
this manner, act unlawfully: I think it is clear that
the Board quite properly felt that the fact the
notes taken by committee members may have been
brief could not have had any effect on its decision.
For these reasons I would dismiss the applica
tion.
* * *
RYAN J.: I concur.
* * *
LE DAIN J.: I concur.
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.