A-97-79
Dr. J. G. Snaauw (Appellant) (Applicant)
v.
Appeal Board established by the Public Service
Commission (Respondent) (Opponent)
Court of Appeal, Jackett C.J., Smith and Kerr
D.JJ.—Ottawa, June 13, 1979.
Judicial review — Public Service — Applicant rejected
during extension of probationary period but reinstated after
Court decision finding such action unauthorized and invalid —
On reinstatement, Chairman of National Energy Board recom
mended that the applicant be released for incompetence in the
performance of his duties — Grounds for this recommendation
the same as those for rejecting the applicant — Appeal Board
found Chairman's conclusions supported by evidence and dis
missed applicant's appeal — Whether or not the Appeal
Board's decision should be set aside — Public Service
Employment Act, R.S.C. 1970, c. P-32, ss. 28, 31 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to set aside a decision of a
Board under section 31 of the Public Service Employment Act.
Applicant had been reinstated in his position with the National
Energy Board after his rejection during an extension of his
probationary period following a decision of the Court to the
effect that such an extension was unauthorized and that such
purported rejection was invalid. On reinstatement, applicant
was notified of the recommendation of the Chairman of the
National Energy Board that he be released for incompetence in
the performance of his duties. The grounds for this recommen
dation were the same as those for rejecting applicant during the
extended probationary period. The applicant appealed to the
Public Service Commission Appeal Board. The Public Service
Commission Appeal Board after hearing witnesses and consid
ering arguments both on questions of fact and law, dismissed
the appeal. This section 28 application attacks that decision.
Held, the application is dismissed. The Board did not err in
law by not holding that the recommendation for dismissal was
outside the scope of section 31 and therefore was not a valid
basis for releasing the applicant. As the applicant had not been
legally "rejected" or otherwise separated from his position, he
continued to occupy it up to and including the date of his
"reinstatement". It cannot be said that a deputy head could
not, in law, form an opinion that a person falls within the words
"incompetent in performing the duties of the position" on the
basis of experience with that person attempting to perform the
duties of the position during a period that has expired some
time before the occasion arises for the deputy head to form and
express that opinion. While the grounds for rejection are not
necessarily limited to incompetence, they most certainly include
incompetence. The argument that as the material relied upon
had been prepared to support a decision to "reject", it could not
be used to support an opinion of incompetence, must be dis-
missed. Lastly, there is no basis in the principles of natural
justice for setting aside the Board's decision.
APPLICATION for judicial review.
COUNSEL:
Macey Schwartz for (appellant) (applicant).
L. S. Holland for (respondent) (opponent).
SOLICITORS:
Macey Schwartz, Ottawa, for (appellant)
(applicant).
Deputy Attorney General of Canada for
(respondent) (opponent).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of a "board" under section 31
of the Public Service Employment Act, R.S.C.
1970, c. P-32.'
' 31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position he
occupies or is incapable of performing those duties and should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointed or released, as the case may be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be appointed
to a position at a lower maximum rate of pay or be released.
(3) Within such period after receiving the notice in writing
mentioned in subsection (2) as the Commission prescribes, the
employee may appeal against the recommendation of the
deputy head to a board established by the Commission to
conduct an inquiry at which the employee 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,
(a) notify the deputy head concerned that his recommenda
tion will not be acted upon, or
(b) appoint the employee to a position at a lower maximum
rate of pay, or release the employee,
accordingly as the decision of the board requires.
(4) If no appeal is made against a recommendation of the
deputy head, the Commission may take such action with regard
to the recommendation as the Commission sees fit.
(5) The Commission may release an employee pursuant to a
recommendation under this section and the employee thereupon
ceases to be an employee.
The relevant events, as I understand them, may
be summarized as follows:
1. Effective December 27, 1974, the applicant
was appointed Assistant Director, Special Eco
nomic Analysis Group, Economics Branch, Na
tional Energy Board.
2. Before the expiration of the period after
which the applicant would have ceased to be "on
probation" by virtue of section 28 (1) of the
Public Service Employment Act, 2 the Chairman
of the Board purported to extend that period
for 12 months.
3. By a letter dated June 2, 1976, the Chairman
purported, for reasons to which reference will be
made hereinafter, to "reject" the applicant
under the authority of section 28(3) of that
Act, 3 effective August 31, 1976.
4. On September 26, 1978, the applicant was
"re-instated" in his position, effective
September 1, 1976, by reason of a decision of
this Court to the effect that such an extension of
the probation period was unauthorized and such
a purported rejection was invalid.
5. At the same time as he was "re-instated",
i.e., on September 26, 1978, the applicant was
notified, under section 31, of the Chairman's
recommendation that he be released "because of
incompetence in the performance of the duties
of your position"—the grounds for which
recommendation were the same as the grounds
for "rejecting the applicant during his extended
probationary period".
2 28. (1) An employee shall be considered to be on probation
from the date of his appointment until the end of such period as
the Commission may establish for any employee or class of
employees.
3 28....
(3) The deputy head may, at any time during the probation
ary period, give notice to the employee and to the Commission
that he intends to reject the employee for cause at the end of
such notice period as the Commission may establish for any
employee or class of employees and, unless the Commission
appoints the employee to another position in the Public Service
before the end of the notice period applicable in the case of the
employee, he ceases to be an employee at the end of that
period.
6. The applicant appealed from that recommen
dation as contemplated by section 31(3).
7. On the hearing of the section 31 appeal, it
was clear that the section 31 recommendation
was based on things that occurred and opinions
that were formed on the basis of which the
Chairman had purported to extend the proba
tion period and ultimately to "reject" the appli
cant, which things occurred and opinions were
formed more than two years prior to the making
of the section 31 recommendation.
8. The Board found, in effect, after hearing
witnesses, of whose testimony we do not have a
transcript, that "all of this evidence taken to
gether could reasonably lead the Depart-
ment"—i.e., the Chairman of the Board—"to
the conclusion that the applicant was incompe
tent in performing the duties of his position".
9. After a review of the evidence, during the
course of which such finding was made, and
considering the arguments of the applicant and
the "Department" both on questions of law and
fact, the Board dismissed the applicant's appeal.
It is the Board's decision dismissing the appli
cant's section 31 appeal that is attacked by this
section 28 application.
For convenience, I propose to discuss the appli
cant's attacks on that decision as summarized in
Part II of the applicant's memorandum in this
Court. The relevant portion of Part II reads:
A) Jurisdiction of Appeal Board
The recommendation of the Chairman of the N.E.B. to the
Commission that the Appellant be released was invalid, being
contrary to section 31(1) of the Act. Hence, the Appeal Board
established by the Commission lacked jurisdiction or exceeded
its jurisdiction in dealing with the matter.
B) Error of Law
The aforementioned issue of jurisdiction was raised as a
preliminary objection by counsel for the Appellant herein ...
but the Appeal Board rejected the objection.... In rejecting the
objection of counsel for the Appellant, the Appeal Board erred
in law in making its Decision.
C) Denial of Natural Justice
By accepting certain evidence ... conducting an inquiry so
long after the events in contention took place, the Appeal Board
failed to observe a principle of natural justice.
D) Error of Fact
The Appeal Board disregarded material before it which
showed that the Chairman of the N.E.B. was wrong, as a
matter of fact, in forming the opinion of the Appellant's
incompetence ....
The first of these attacks entitled "Jurisdiction
of Appeal Board" should, in my view, be regarded
as an allegation that the Board's decision was
based on an error of law in not holding that the
recommendation for dismissal was outside the
scope contemplated by section 31 and was not,
therefore, a valid basis for releasing the applicant. 4
While the character of the attack set out under
this heading is, in my view, improperly described,
the substance of the attack as a contention that the
Board's decision was based on an error of law is
adequately set forth and it should, accordingly, be
considered.
The legal question so raised is whether, in the
circumstances already referred to, it can be said
that the Chairman had, on September 26, 1978,
formed the opinion that the appellant was
incompetent in performing the duties of the position he occu
pies or is incapable of performing those duties
within the meaning of those words in section
31(1). The contention, as I understand it, is that
the applicant did not occupy or perform the duties
of his position after August 31, 1976 and the
Chairman was not, therefore, entitled, on Septem-
ber 26, 1978, to make a recommendation for his
release under section 31.
It is to be noted that the Chairman based his
recommendation on an expression of opinion that
was, in effect, that the applicant was "incompetent
in performing the duties of the position he occu
pies" and was not an expression of opinion that the
applicant was "incapable of performing those
duties".
The contention raises two questions, viz.:
(a) As of September 26, 1978, did the applicant
occupy the position from which he had purport
edly been "rejected"? and
If the Board had no jurisdiction, all it could have done was
to dismiss the applicant's appeal for lack of jurisdiction, which
would have left the applicant without relief if the legal proposi
tion put forward was sound. In my view, the Board has
jurisdiction under section 31 to decide that a recommendation
purporting to have been made under section 31 was not author
ized by section 31.
(b) If the answer to the first question is in the
affirmative, as a matter of law, could an opinion
be formed, as of September 26, 1978, that the
applicant was "incompetent in performing the
duties of the position he occupies" having regard
to the fact that he had not been "performing"
those duties since August 31, 1976?
With reference to the first of these questions
(which, as I understood him, was not really pushed
by counsel during argument), the short answer, in
my view, is that, as the applicant had not been
legally "rejected" or otherwise separated from his
position, he continued to occupy it up to and
including September 26, 1978. 5 This is, apparent
ly, the view of the law on which the applicant was
"re-instated" by the "Department" and on which
his status in these proceedings depends.
The second question raises a somewhat more
difficult problem owing to the somewhat unusual
use of the word "incompetent" with the words "in
performing the duties of the position ...". The
ordinary meaning of "incompetent" in the context
is
Of inadequate ability or fitness; not having the requisite capaci
ty or qualification; incapable. 6
Put shortly, "incompetent" in this context means
"inadequate" or "incapable". Having regard to its
use in conjunction with the words "incapable of
performing those duties", the better view, in my
opinion, is that the words "incompetent in per
forming the duties of the position" require that the
person has, in his attempt to perform those duties,
shown that he is inadequate for, or incapable of,
performing such duties. The alternative view
would be that they simply mean inadequate for, or
incapable of, performing the duties of the position
which would leave no scope for application of the
following words. However, for the purposes of this
application, no final view has to be expressed as to
which view is correct. Whichever view is adopted
as to the meaning of the words "incompetent in
performing the duties of the position", I am of
5 To what extent he would be entitled to be paid for periods
during which he did not perform the duties of the position
would be another question.
6 See meaning number 2 of the word "incompetent" in The
Shorter Oxford English Dictionary, Third Edition.
opinion that it cannot be said that a deputy head
could not, in law, form an opinion that a person
falls within those words on the basis of experience
with that person attempting to perform the duties
of the position during a period that has expired
some time before the occasion arises for the deputy
head to form and express that opinion.'
What I have said with reference to the first
attack made by the applicant on the Board's deci
sion makes it unnecessary for me to add anything
with reference to the second attack entitled "Error
of Law".
Turning to the third attack entitled "Denial of
Natural Justice", it would not appear, in my opin
ion, that there is any basis in the principles of
natural justice for setting the Board's decision
aside. There is no allegation of bias and there is no
suggestion that the applicant was not given a
reasonable opportunity of answering the allega
tions that were prejudicial to him. It is further to
be noted that he was represented by counsel and
that there is no suggestion that any request was
made to the Board for an adjournment to enable
the applicant to prepare a different or better case
in reply to such allegations. It is difficult to con
ceive how the Board could otherwise have accord
ed a greater measure of procedural fairness or
justice to the applicant. The suggestion that the
rules of natural justice required that certain evi
dence should have been suppressed because of the
passage of two years is, in my view, untenable.
Passage of time might be a factor to be considered
in weighing the evidence but that was a question
for the Board as fact finder.
Finally, with reference to the attack entitled
"Error of Fact", the only contention that requires
to be mentioned is, in effect, as I understood it,
that, as the material relied upon was prepared to
support a decision to "reject", it could not be used
to support an opinion of incompetence. The short
answer to this, in my opinion, is that, while the
grounds for rejection are not necessarily limited to
incompetence, they most certainly include
incompetence.
' This is not to say that the lapse of time might not, in certain
circumstances, be so great that no reasonable person could use
the experience as a basis for the opinion. In my opinion, this is
not such a case.
For the above reasons, I am of opinion that the
section 28 application should be dismissed.
* * *
SMITH D.J. concurred.
* * *
KERR D.J. concurred.
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.