T-350-78
Bernice McCarthy (Plaintiff)
v.
Attorney General of Canada (Defendant)
Trial Division, Lieff D.J.—Toronto, February 23
and June 28, 1979.
Public Service — Competition for position — Plaintiff
placed on eligibility list, but later removed without a hearing
- The number of appointments made prior to and subsequent
to plaintiff's removal from list indicate plaintiff would have
been appointed but for her removal from the list — Grievance
denied, and appeal to Public Service Commission, Appeals
Branch, dismissed for want of jurisdiction — Declarations
sought: (1) that plaintiff was deprived of rights respecting
appointment without justification, (2) that failure to hold
hearing prior to removal from list was a denial of natural
justice, (3) that plaintiff was entitled to a hearing to determine
validity of her removal from the list, (4) that plaintiff was
entitled to damages, (5) alternatively, that plaintiff has the
right to appeal to the Public Service Commission, Appeals
Branch — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 18 — Public Service Staff Relations Act, R.S.C. 1970, c.
P-32, ss. 6(2),(3), 21.
In April 1977, plaintiff was placed as number thirty on an
eligible list following a competition for a position in the Public
Service, and in September 1977, was removed from that list.
Prior to plaintiff's removal from the list, fifteen persons from it
were placed in positions, and subsequent to her removal from it,
fifteen more persons were placed. The Department removed
plaintiff from the list with the Public Service Commission's
approval but without a hearing. Plaintiff's appeal to the Public
Service Commission, Appeals Branch, was dismissed for want
of jurisdiction and her grievance, launched pursuant to the
collective agreement and the Public Service Staff Relations
Act, was denied at the final level. Plaintiff now seeks declara
tions that she has been deprived of her rights respecting the
appointment without justification; that she has been denied
natural justice by the failure to hold a public hearing; that she
is entitled to a hearing, set up by the Public Service Commis
sion, to determine the validity of the removal of her name from
the eligibility list; that she is entitled to damages; and alterna
tively, that she has the right to appeal from the Department's
action to the Public Service Commission, Appeals Branch.
Held, the action is dismissed. It has been established that
removal from the "eligible list" should be characterized as a
purely administrative act. The Court has jurisdiction under
section 18 of the Federal Court Act to make the declaration if
the merits of plaintiff's case warrant it. In the absence of
jurisdictional error, the Federal Court will not intervene to
affect a code of procedure established under an Act of Parlia
ment for the disposition of matters specified therein. The
grievance procedure under the Public Service Staff Relations
Act, however, was not the only remedy open to the plaintiff. No
section of that Act states that an employee who decides to
grieve has no status to seek a remedy in Court. Express and
unequivocal language is needed before any citizen is denied the
right to seek judicial redress. Subsections 6(2) and (3) of the
Public Service Staff Relations Act indicate that Parliament
intended that a hearing should be held only where appoint
ments have already been made from within the Public Service;
where Parliament provides for a hearing in one instance and
not in another, an expressio unius rule of construction should
be applied to deny plaintiff a hearing in this case. Plaintiff was
attempting to use the procedure under section 21 to complain
about her treatment under section 6(2); she was not attempting
to challenge the appointment of other employees. Section 6
contains its own avenue of redress; where it proves unfruitful,
section 21 cannot be relied upon as a substitute. Arguments of
procedural fairness have little application in this matter. The
only duty of fairness owed by a selection or rating board is a
duty to assess honestly the merit of each candidate for a
particular appointment. Given plaintiff's poor attendance
record and her attitude when confronted with it, it cannot be
honestly said that she was not fairly judged on her merits and
found wanting. Moreover, the issue is one of promotion, not
dismissal. The decision whether to grant or refuse a position
must remain within the employer's discretion, unencumbered
by the need to grant the candidate an opportunity to present
her case.
Landreville v. The Queen [1973] F.C. 1223, followed.
McCann v. The Queen [1976] 1 F.C. 570, followed.
Clarke v. Attorney-General of Ontario [1966] 1 O.R. 534,
distinguished. Pearlberg v. Varty [1972] 1 W.L.R. 534,
agreed with. Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police [1979] 1 S.C.R. 311,
considered. Blagdon v. The Public Service Commission,
Appeals Board [1976] 1 F.C. 615, applied.
ACTION.
COUNSEL:
S. Grant for plaintiff.
P. Evraire for defendant.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
LIEFF D.J.: In this action, the plaintiff seeks
declarations that:
(a) ... she has been deprived, without justification, of her
rights respecting appointment within the Department of Na
tional Revenue (Taxation);
(b) ... she has been, by the failure to hold a hearing, deprived
of natural justice;
(c) ... she is entitled to a hearing or Board of Inquiry set up
by the Public Service Commission to determine the validity of
the removal of the Plaintiff's name from the revised Eligible
List;
(d) ... she is entitled to her damages, general and special,
direct, consequential or proximate, which flow from the actions
taken by the Department of National Revenue and the denial
of natural justice;
(e) In the alternative, ... that the Plaintiff has a right of
appeal from the action taken by the Department of National
Revenue (Taxation) to the Public Service Commission, Appeals
Branch;
In her statement of claim, at paragraph 11, the
plaintiff states "that at no time has she been given
an opportunity to hear and challenge the reasons
for her removal from the said revised Eligible List
and the Plaintiff further states that at no time has
a hearing been held to allow the Plaintiff the
opportunity to challenge the validity of the action
taken and as such she has been treated in an
arbitrary, discriminatory and unfair manner and,
as a consequence, has been denied natural justice".
Whether such a hearing should have been held
is the central issue of this case.
The facts in the case are not in dispute and are
set out fully in two agreed statements of fact dated
April 20, 1978, and February 23, 1979, respective
ly, as follows:
Statement dated April 20, 1978:
1. The Plaintiff is a clerk with the Department of National
Revenue (Taxation) in the City of Toronto, in the Province of
Ontario.
2. The Plaintiff applied for the position of Assessing Clerk in
Occupation Group CR-4, in competition number 77-TAX-
TOR-CC-8 in March, 1977.
3. The Plaintiff was placed in the Eligible List effective April
12th, 1977 as number 30.
4. Between April and August, 1977 the first fifteen persons
from the said List were placed in the position of Assessing
Clerk.
5. In September, 1977 the Plaintiff was advised that her name
was removed from the said Eligible List by letter which is
attached as Appendix A.
6. Subsequently the other fifteen persons whose names were on
the List were placed in the position of Assessing Clerk.
7. The action to remove the Plaintiff from the said List was
taken by the Department of National Revenue after receiving
authority to do so from the Public Service Commission.
Attached hereto as Appendices B and C respectively are the
request for permission to take the said action and the reply.
8. No hearing was held by the Department of National Reve
nue or Public Service Commission nor was a Board of Inquiry
constituted or held by either the Department or Public Service
Commission.
9. The Plaintiff appealed to the Public Service Commission,
Appeals Branch which in a decision attached as Appendix D,
denied that it had jurisdiction to conduct a hearing.
10. The Plaintiff through the Public Service Alliance of
Canada launched a grievance pursuant to the provisions of the
collective agreement and the Public Service Staff Relations Act
though at the date hereof the grievance is in abeyance having
been processed to the third level, prior to which the grievance
had been denied at the first and second levels, and no determi
nation has been made at this stage.
Further Statement Dated February 23, 1979:
1. The Plaintiff pursued her grievance to the fourth and final
level where it was denied and the matter did not proceed to
adjudication; and
2. The Plaintiff ceased her employment with Her Majesty the
Queen on June 9, 1979.
The statement of defence is substantially as
follows:
The defendant specifically denies that it has breached the
principles of natural justice, as alleged in paragraph 11 of the
Statement of Claim.
and
... relies upon The Public Service Employment Act, R.S.C.
1970, Chapter 71 and Section 6(1)(2)(3) and amendments
thereto, and say that the Public Service Commission properly
authorized the removal of the Plaintiff's name from the eligible
list referred to in paragraph 10 of the Statement of Claim.
The Defendant ... relies upon The Public Service Staff Rela
tions Act, R.S.C. 1970, Chapter P. 35 and Sections 90(1) and
91 and amendments thereto,
and
... states that by decision in writing dated the 20th day of
October, 1977, a board established by the Public Service
Commission pursuant to the provisions of Section 21 of The
Public Service Employment Act, R.S.C. 1970, Chapter 71 to
conduct an appeal from the alleged action taken by the Depart
ment of National Revenue, Taxation, determined that the
Board had no jurisdiction to conduct an inquiry into the matter.
The Defendant pleads and relies upon the doctrine of RES
JUDICATA.
The Defendant denies that the Plaintiff sustained the dam
ages as alleged.
The legal issues in this case are complex and I
find it convenient to discuss them under six
headings.
1. Does the Trial Division have jurisdiction under
section 18 of the Federal Court Act to issue a
declaration in this matter?
Sections 18 and 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, provide that where
a decision-maker must act in a judicial or quasi-
judicial manner, the Federal Court of Appeal has
original jurisdiction in all review proceedings,
while all residuary review jurisdiction resides with
the Trial Division. In the instant case, the act of
removing the plaintiff from the "eligible list"
should be characterized as a purely administrative
act that is not required to be done on a judicial or
quasi-judicial basis.
Authority for this conclusion is to be found in
Blagdon v. The Public Service Commission,
Appeals Board [1976] 1 F.C. 615. In that case,
Thurlow J. [as he then was] at page 617 charac
terized the decision of a Selection Board not to
appoint the applicant to a position as neither judi
cial, quasi-judicial nor disciplinary. I therefore
find that the Trial Division has jurisdiction to issue
a declaration in this matter.
2. Having so found, is it appropriate for the Court
to issue a declaration where the plaintiff is no
longer an employee of the Department of National
Revenue?
The defendant argued that the Court should not
exercise its discretion to grant a declaration
because the plaintiff had ceased her employment
with Revenue Canada and therefore the issues, as
they affected the plaintiff, had become academic.
The defendant's submission was based in part on
de Smith, Judicial Review of Administrative
Action, 3rd edition, at pages 449-452, where the
learned author wrote [at page 449] that:
In an action for a declaration ... it must be shown that a
"real and not a fictitious or academic question is involved and
is in being between two parties."
The plaintiff contended that the Court may
award declaratory relief, although the plaintiff had
left the employment of the Department of Nation
al Revenue in June 1978. I accept the argument of
the plaintiff on this issue and propose to examine
the relative authorities.
In Landreville v. The Queen [1973] F.C. 1223,
the central question was whether the Court had
jurisdiction to issue a declaration on a legal issue
in a case where the declaration would have no
legal effect but would likely have some practical
utility. Pratte J. held in that case that the Court
had jurisdiction to make a declaration which,
though devoid of any legal effect, would serve
some useful purpose from a practical point of view.
His finding was based on the English case of
Merricks v. Nott-Bower [1964] 1 All E.R. 717, in
which case at page 721, Lord Denning advanced
the case for a wider jurisdiction over declaratory
relief in the following succinct language:
If a real question is involved, which is not merely theoretical,
and on which the court's decision gives practical guidance, then
the court in its discretion can grant a declaration.
Support for the position taken in Landreville is
to be found in McCann v. The Queen [1976] 1
F.C. 570. In McCann, the plaintiffs, who were
inmates of a penitentiary, sought a declaration
that solitary confinement constituted cruel and
unusual punishment. By the date of trial, the
plaintiffs were no longer in the solitary confine
ment unit. One of the questions raised was wheth
er the declaration should issue, having regard to
the fact that the plaintiffs were no longer in soli
tary. The Court held that the declaration should
issue. Heald J. held that the Court had jurisdiction
to make a declaration when it would serve some
useful purpose from a practical point of view. In
McCann, the Court, by making the declaration,
could give practical guidance to the penitentiary
authorities.
Lazar Sarna at page 18 of The Law of Declara-
tory Judgments, Carswell: Toronto, 1978, offered
the following:
The courts have on occasion assumed jurisdiction to make a
declaration which is devoid of legal effect, but likely to have
some practical effect. Judgments have issued confirming that a
labour dismissal or demotion was wrongfully effected even
though there was no possibility of reinstatement, and that an
administrative decision was ordered without regard to princi
ples of natural justice even though the cancellation of the
decision would not restore the status quo ante. While the
applicant may have no real economic or patrimonial stake in
obtaining the judgment, judicial sympathy has been forthcom
ing, especially where relief might effectively remove a slur upon
the applicant's character, or provide corrective guidance to
administrative officials.
In the case at bar, a declaration (if the Court
thought it appropriate to issue one) would serve
the purpose of guiding the Public Service Commis
sion to the procedure to be followed when remov
ing candidates for appointment from an "eligible
list". Whether it is appropriate to issue a declara
tion in the present case, depends upon a consider
ation of the remaining issues. Suffice it to say that
the Court has jurisdiction to make the declaration
if the merits of the plaintiff's case warrant it.
3. Do the procedures under the Public Service
Employment Act or the Public Service Staff
Relations Act provide an exclusive and exhaustive
remedy for the plaintiff?
The defendant argued that all rights of public
servants in the federal government must flow from
either the Public Service Employment Act, R.S.C.
1970, c. P-32, or the Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35. The case of
Professional Institute of the Public Service of
Canada v. Treasury Board [ 1977] 1 F.C. 304 was
cited as authority for the defendant's submission.
In that case, the Court held that it could not
intervene and refused to issue a writ of mandamus
to enforce an arbitration award. Addy J. held that
all rights of federal employees must flow from
statute, in this case the Public Service Staff Rela
tions Act. Where a statute grants special statutory
rights and provides a comprehensive procedure for
their enforcement, the Federal Court cannot
simply intervene at any stage of the proceedings.
Addy J. also stated at page 313 that to do so
"would constitute a direct contravention of the
express will of Parliament that these matters be
dealt with pursuant to the Act on which the rights
are founded."
I gather from this statement by Addy J. that in
the absence of jurisdictional error, the Federal
Court will not intervene to affect a code of proce
dure established under an Act of Parliament for
the disposition of matters specified therein. The
Court's view of section 18 of the Federal Court
Act is also instructive for the purpose of deciding
the present case. At page 313, Addy J. writes that:
Section 18 of the Federal Court Act is by no means an
overriding authority for this Court to intervene at any time
regardless of the circumstances. It is merely enabling legisla-
tion permitting this statutory Court which possesses no jurisdic
tion or powers other than those granted to it by statute, to
exercise its jurisdiction in the field of mandamus and other
related fields providing it is otherwise proper and permissible
for it to do so.
The Professional Institute case does not deline
ate specifically all those areas in which the Court
may intervene and those in which it must defer to
the scheme established by Parliament. Neverthe
less, it does provide support to the defendant's
argument that notions of common law, natural
justice and fairness have little, if any, application
in the case at bar. The final resolution of this
problem must await the discussion of the fairness
issues to be dealt with at the conclusion of this
judgment.
4. The question of exclusivity notwithstanding,
does the plaintiff's decision to exercise her right to
grieve bar her from seeking other and further
relief?
The defendant contended that the grievance
procedure under the Public Service Staff Rela
tions Act was the only remedy open to the plain
tiff. The case of Clarke v. Attorney-General of
Ontario [ 1966] 1 O.R. 534 was cited in support of
the defendant's submission. In Clarke, it was held
that where a public servant of the provincial gov
ernment was given an option to file a grievance
after his dismissal, the grievance procedure reme
died the failure of the Deputy Minister to hold the
hearing required by statute.
I do not accept the defendant's submission on
this issue. In Clarke, the Ontario Court of Appeal
was concerned with the dismissal of a public ser
vant under a provincial statute; in the case at bar,
we are concerned with federal legislation. More
over, the decision in Clarke was based on the
premise that the provisions of The Public Service
Act, 1961-62, S.O. 1961-62, c. 121, and Regula
tions in no way derogated from the prerogative of
the Crown to dismiss at pleasure as recognized in
the provisions of The Interpretation Act, R.S.O.
1960, c. 191. This particular argument is not
before the Court in the present matter.
I have been unable to find any sections of the
Public Service Staff Relations Act which say that
an employee who decides to grieve has no status to
seek a remedy in Court. Express and unequivocal
language is needed before any citizen is denied the
right to seek judicial redress.
I also find it necessary to consider the submis
sion of plaintiff's counsel that the plaintiffs griev
ance may have been denied because the issue of
her removal from the "eligible list" was not a
suitable subject for grievance under section 90 of
the Public Service Staff Relations Act. To come
within section 90, the plaintiff's grievance would
have had to concern "a term or condition of
employment". Counsel for the plaintiff submitted
that "as no determination had been made that the
removal of the plaintiff from the Eligible List is a
term or condition of employment, it may be that
the grievance procedure is not open to the Plaintiff
at all". If there is any merit in this argument, it
merely fortifies my earlier conclusion that the
plaintiff should not be denied access to the Court
simply because she has decided to exercise her
right to grieve.
5. Is the plaintiff entitled to a hearing by virtue of
sections 6(3) and 21 of the Public Service
Employment Act?
Section 6(2) of the Public Service Employment
Act enables the Public Service Commission, (sub-
ject to subsection (3)), to revoke an appointment
or direct that an appointment be not made, where
the Commission is of the opinion, inter alia, that a
person who has been or is about to be appointed to
or from within the Public Service does not have
the qualifications that are necessary to perform the
duties of the position he occupies or would occupy.
Subsection (3) of section 6 stipulates that an
appointment from within the Public Service may
be revoked by the Commission pursuant to subsec
tion (2) of section 6 only upon the recommenda
tion of a board established by it to conduct an
inquiry where the employee is given the opportu
nity of being heard. No reference is made in
section 6(3) to appointments that are about to be
made (emphasis added).
The wording of section 6(3) indicates that an
employee who has already been appointed from
within the Public Service must be given a hearing
before he can be removed. However, the plaintiff
urges that a person whose appointment was about
to be made from within the Public Service should
also receive the protection of section 6(3). In the
plaintiff's view, Parliament could not have intend
ed to provide a hearing for one category of
employees who had already been appointed to a
position in contrast to another category who were
about to be appointed; the only difference between
the two groups being that the former had already
commenced their duties while the latter merely
awaited appointment.
The defendant argued that (a) a consideration
of subsections 6(2) and (3) indicates that Parlia
ment intended that a hearing should be held only
where appointments have already been made from
within the Public Service; and (b) where Parlia
ment provides for a hearing in one instance and
not in another, an expressio unius rule of con
struction should be applied to deny the plaintiff a
hearing in this case.
The defendant relies upon Pearlberg v. Varty
[1972] 1 W.L.R. 534 in support of the submission.
In Pearlberg, the income tax legislation provided
for a hearing under certain sections but none was
required under the section in question. The House
of Lords held, in effect, that where Parliament has
addressed its mind to the question of procedure
and devised a procedural code, there is no reason
for the implication of further procedural protec
tions by the courts. At page 545, Viscount Dil-
horne made the following observations:
I would only emphasize that one should not start by assuming
that what Parliament has done in the lengthy process of
legislation is unfair .... Parliament thought it fair that the
person affected should have the right to be heard where leave
was sought under section 51 of the Finance Act 1960 and have
the right to make representations to the tribunal under section
28 of that Act. The omission so to provide in section 6 of the
Income Tax Management Act 1964 cannot, as I have said, in
my opinion, be regarded as anything other than deliberate and,
if deliberate, it should be assumed that Parliament did not
think that the requirement of fairness made it advisable to
provide any such rights for the person affected. If this was the
view of Parliament, it would require a very strong case to
justify the addition to the statute of requirements to meet one's
own opinion of fairness.
I accept the defendant's interpretation of sec
tions 6(2) and 6(3). However, before disposing of
this phase of the matter, it is necessary to consider
Chief Justice Laskin's view in Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners
of Police [1979] 1 S.C.R. 311. In Nicholson,
Laskin C.J.C. refused to give a broad interpreta
tion to the expressio unius rule of construction
relied upon by Arnup J.A. in the Ontario Court of
Appeal. Arnup J.A. applied the rule by noting that
where the Legislature expressly calls for notice
and a hearing in certain circumstances, it has by
necessary implication excluded them in other
instances. Laskin C.J.C. found that the Court of
Appeal had carried the maxim too far and adopted
the statement of Lopes L.J., in Colquhoun v.
Brooks (1888) 21 Q.B.D. 52 at 65 to the effect
that "the maxim ought not to be applied, when its
application, having regard to the subject-matter to
which it is to be applied, leads to inconsistency or
injustice".
The ultimate resolution of the conflict between
Pearlberg and Nicholson will depend on whether it
is unfair or unjust that the plaintiff be removed
from the "eligible list" without being given an
opportunity to present her case. I will discuss this
issue toward the conclusion of this judgment.
Section 21 of the Public Service Employment
Act provides that:
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.
In essence, section 21 contemplates a procedure
whereby an unsuccessful candidate may attack the
appointment of a successful candidate. The "inqui-
ry" contemplated by section 21 is designed to
determine whether the selection was made accord-
ing to merit and in the manner contemplated by
statute.
In the present case, the plaintiff launched an
appeal under section 21, after she was informed
that her name had been removed from the "eli-
gible list". The Appeal Board declines jurisdiction
on the grounds that (1) the plaintiff should have
appealed as soon as she saw her low position on the
"eligible list", and (2) she had no right of appeal
under section 21 after her name was removed,
since there was no provision for a right of appeal
under section 6(2).
At the trial of this action, counsel for the plain
tiff contended that as soon as the plaintiff's name
had been removed from the list she became an
"unsuccessful candidate" entitled to an appeal
under section 21. The defendant argued, inter alia,
that the plaintiff, if she were an unsuccessful
candidate, could appeal only on the basis that the
successful candidate had not been chosen on the
merit principle as mandated by the statute.
Rather, the plaintiff appealed on the ground that
her removal from the "eligible list" had been
unwarranted.
I agree with the submission of the defendant on
this branch of the case. In Nanda v. Appeal Board
Established by the Public Service Commission
[1972] F.C. 277, at pages 295-296, Jackett C.J.
offered the following interpretation of section 21
of the Public Service Employment Act:
In my view, the "inquiry" contemplated by section 21 is,
ordinarily, an inquiry into the question whether the "selection"
on which was based the appointment appealed against was a
selection "according to merit, as determined by the Commis
sion" and was made by the Commission in the manner contem
plated by section 10. I am further of the view that the `oppor-
tunity of being heard" to which the person appealing and the
deputy head are entitled is an opportunity of putting before the
appeal Board during the inquiry any facts that bear on those
questions ....
It is apparent that Ms. McCarthy was attempt
ing to use the procedure under section 21 to com
plain about her treatment under section 6(2); she
was not attempting to challenge the selection of
the other appointees. Section 6 contains its own
avenue of redress; where it proves unfruitful, sec
tion 21 cannot be relied upon as a substitute.
6. Notwithstanding any rights granted by statute,
did the plaintiff have a common law right to
procedural fairness which was breached by the
manner of her removal from the "eligible list"?
The plaintiff submitted that it was the duty of
the Public Service Commission to act fairly.
Consequently, a hearing or at least an opportunity
to make representations must be granted to a
person whose name has been removed from the
"eligible list", regardless of whether this decision
can be characterized as quasi-judicial or adminis
trative. The defendant, on the other hand,
advanced the view that the concept of fairness did
not afford the plaintiff any relief in this action.
Although both sides cite much authority in support
of their contention, I shall restrict my discussion to
two cases.
Blagdon v. The Public Service Commission,
Appeals Board (supra) goes a long way toward
promoting the defendant's case. This case was not
cited by either counsel. In Blagdon, a Public Ser
vice Commission Selection Board concluded that
the applicant did not have a good safety record
and therefore decided against his appointment as a
ship's Master. The applicant appealed to the Fed
eral Court of Appeal on the ground that the
Selection Board acted illegally in considering his
safety record without allowing him to present his
views.
Thurlow J. [as he then was] held that the appli
cant was not entitled to a hearing by the Board.
The learned Justice characterized the selection
process as neither judicial, quasi-judicial nor disci
plinary. Rather, it was a process for assessing the
qualifications of candidates for a position and for
rating them by merit.
Pratte J. offered the following analysis at pages
622-623:
A Rating Board is an instrument used by the Public Service
Commission to perform its duty to select candidates on the
basis of merit. Its function is merely to assess the various
candidates and, in doing so, it performs a purely administrative
task. That task must, of course, be performed fairly and
honestly so as to achieve an assessment on the basis of merit,
but it is not governed by rules, such as audi alteram partem,
applicable to judicial or quasi-judicial bodies. Speaking broad-
ly, the only general rule that governs the activity of a' Selection
Board is that the selection be made on the basis of merit.
Applying Blagdon to the case at bar, I find it
necessary to accede to the defendant's submission
that arguments of procedural fairness have little
application in this matter. It may be urged that the
Court did not address itself to the question of
procedural fairness but instead concentrated on
the old distinction between quasi-judicial and
administrative tasks. However, a reading of the
case leads me to conclude that the only duty of
fairness owed by a selection or rating board is a
duty to assess honestly the merit of each candidate
for a particular appointment. If this is all that is
required of a Selection Board in making an initial
assessment, I find it difficult to place a higher duty
on the Public Service Commission when it author
izes the removal of a candidate from the list for
cause. Surely it must be conceded that such an
action is as much a part of the process of selection
based on merit as was the original act of ranking
the candidates.
Given the poor attendance record of the plaintiff
herein and the attitude demonstrated by her when
confronted with it, can it honestly be said that she
was not fairly judged on her merits and found
wanting? Moreover, the issue in this case focussed
on the question of promotion, not dismissal. The
decision whether to grant or refuse a promotion
must remain within the discretion of the employer,
unencumbered by the need for granting the candi
date an opportunity to present her case.
Lord Pearson's observation at page 547 of
Pearlberg v. Varty, (supra), is instructive on this
point.
Fairness, however, does not necessarily require a plurality of
hearings or representations and counter-representations. If
there were too much elaboration of procedural safeguards,
nothing could be done simply and quickly and cheaply.
Administrative or executive efficiency and economy should not
be too readily sacrificed.
In the result, the action is dismissed and in the
special circumstances of this case, and because
success was divided, I make no order as to costs.
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.