A-602-79
Zoltan Melkvi (Applicant)
v.
Deputy Attorney General of Canada (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and Kerr
D.J.—Ottawa, February 7, 1980.
Judicial review — Public Service — Application to review
decision of Public Service Commission Appeal Board not to
interfere with selection board's decision finding applicant not
qualified — Applicant not asked all five questions to test
knowledge and ability — Selection board criticized by Appeal
Board — Decision of Appeal Board not to interfere based on
applicant's failure of personal suitability — Failure of appli
cant to challenge this before Appeal Board — Whether Appeal
Board should have raised this question — Whether Appeal
Board misinterpreted evidence and erred in law in resting on
selection board's assessment — In absence of challenge by
applicant, Appeal Board did not err in law — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Paul Saint-Denis for applicant.
Hunter W. Gordon for respondent.
SOLICITORS:
Paul Saint-Denis, Ottawa, for applicant.
Deputy Attorney General of Canada for
himself.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: We have not been persuaded
that the Public Service Commission Appeal Board
failed to exercise its jurisdiction or that it erred in
law in dismissing the applicant's appeal.
The applicant was found by a selection board to
be not qualified for a position for which he had
applied. On his appeal, the Appeal Board found
that the applicant had not been asked all five of
the questions to be put to the candidates to test
their knowledge and abilities, and it criticized the
selection board for failing to provide the applicant
with a full and fair opportunity to answer all the
questions and to display his knowledge in relation
to them.
The Appeal Board, however, declined to inter
fere as the selection board, besides finding the
applicant not qualified in respect of his knowledge
and abilities, had also found him not qualified in
respect of his personal suitability for the position.
Though this finding was by itself sufficient to
disqualify the applicant, personal suitability being
one of the requirements, it was not challenged
before the Appeal Board. We were invited first to
hold that it was incumbent on the Appeal Board to
raise the question and that by not doing so, the
Appeal Board failed to exercise its jurisdiction. In
our opinion, the applicant had a full and fair
opportunity to challenge the finding before the
Appeal Board and not having done so, it was not
incumbent on the Appeal Board to investigate it.
We were also invited to hold that the Appeal
Board misinterpreted the evidence and therefore
erred in resting its decision on the selection board's
assessment of the applicant's personal suitability
for the position. In the absence of any challenge by
the applicant to the finding in question, in our
view, it cannot be said that the Appeal Board erred
in law in adopting the finding.
The application therefore fails and is dismissed.
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