A-489-79
Bernice McCarthy (Appellant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, June 23; Ottawa, June 27, 1980.
Public Service — Competition for position — Plaintiff
placed on eligibility list, but later removed without a hearing
— Appeal from Trial Division decision, inter alia, that there is
no requirement in this case for the necessity to observe proce
dural fairness — Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 6(2),(3), 21.
This is an appeal from a decision of the Trial Division
whereby the appellant's action for declaratory relief and for
damages resulting from the removal of appellant's name on an
eligible list for a position in the Public Service with the
approval of the Public Service Commission but without a
hearing, was dismissed. The Trial Judge held, inter alia, that
arguments of procedural fairness had little application in this
case since the removal, as well as the act of ranking candidates,
is part of the process of selection based on merit and the
decision whether to grant or refuse a position must remain
within the employer's discretion, unencumbered by the need to
grant candidates an opportunity to present their case. The
appeal turns on the question whether the Trial Judge erred in
finding that there was no requirement here for the necessity to
observe procedural fairness.
Held, the appeal is allowed. There is evidence on the record
that the appellant was a participant in a "counselling session"
with her group head in respect of her "absenteeism". However,
there is no evidence that she was warned by the group head or
anyone else that if the absenteeism persisted, her name would
be removed from the "eligible list". Neither is there the slight
est bit of evidence to indicate that her Department and, in
particular, the Public Service Commission, sought an explana
tion from her or permitted her to explain her conduct. The
consequences flowing from being placed on the "eligible list" is
not part of the selection process involving the exercise of a
discretion by the selection board. The process has been com
pleted when the "eligible list" is created. Its creation confers, at
the very least, the right of priority to appointment over those
below her on the list. Appellant should have been told why her
name was to be removed from the "eligible list" and given an
opportunity, whether orally or in writing, as the Commission
might determine, to respond.
Per MacKay D.J. dissenting: The onus rested on appellant to
show that she was unfairly treated or denied natural justice,
either in that she was not given notice and was not aware of the
reasons for her being struck off the list or that she was not
given any opportunity to refute or explain the complaints
against her. She was made aware at the counselling sessions of
the complaints against her and had the opportunity at these
sessions with her supervisor to explain her absenteeism. It was
also open to her to ask the Trial Judge to permit her at the trial
to give evidence to refute the allegations if they were untrue but
she did not do so. In these circumstances, there was no denial of
natural justice.
Inuit Tapirisat of Canada v. The Right Honourable Jules
Léger [1979] 1 F.C. 710, applied. Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners of
Police [1979] 1 S.C.R. 310, applied.
APPEAL.
COUNSEL:
Stephen M. Grant for appellant.
P. Evraire for respondent.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal from a judgment of
the Trial Division [[1980] 1 F.C. 22] whereby the
appellant's action for declaratory relief and for
damages in a matter arising under the Public
Service Employment Act, R.S.C. 1970, c. P-32,
was dismissed.
The action was tried on an agreed statement of
facts which reads as follows:
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.
The prayer for relief contained in the appellant's
statement of claim reads as follows:
The Plaintiff therefore claims:
a) A declaration that she has been deprived, without justifi
cation, of her rights respecting appointment within the
Department of National Revenue (Taxation);
b) A declaration that she has been, by the failure to hold a
hearing, deprived of natural justice;
c) A declaration that she is entitled to a hearing or Board of
Inquiry set up by the Public Service Commission to deter
mine the validity of the removal of the Plaintiffs name from
the revised Eligible List;
d) In the alternative, a declaration that the Plaintiff has a
right of appeal from the action taken by the Department of
National Revenue (Taxation) to the Public Service Commis
sion, Appeals Branch;
e) A declaration that the Plaintiff 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;
f) The Plaintiffs costs of this action;
g) Such further and other relief as this Honourable Court
may deem just.
In his reasons for judgment, the learned Trial
Judge posed for himself six questions the answers
to which, summarized, follow:
1) The act of removing the appellant 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.
Therefore the Trial Division has jurisdiction
under section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, to grant
declaratory relief to the appellant.
2) Notwithstanding the fact that at the time of
the trial of the action, the appellant was no
longer an employee of the Department of Na
tional Revenue, a declaration (if the Court
thought it appropriate to issue one) would from
a practical point of view, serve the purpose of
guiding the Public Service Commission to the
procedure to be followed when removing candi
dates for appointment from an "eligible list".
The Court has jurisdiction to make the declara
tion if the merits of the appellant's case warrant
it.
3) It appears that all rights of public servants in
the employ of the Federal government must flow
either from the Public Service Employment Act,
R.S.C. 1970, c. P-32, or the Public Service Staff
Relations Act, R.S.C. 1970, c. P-35. Whether or
not the doctrine of procedural fairness is appli
cable in such cases is a matter which will be
determined in answering the sixth of the ques
tions to which he directed his attention.
4) The rights granted to an employee to resort
to the grievance procedure accorded to him by
the Public Service Staff Relations Act does not
bar him from seeking a remedy in an appropri
ate Court.
5) Subsection 6(2)' of the Public Service
Employment Act ("the Act") provides that the
Public Service Commission can revoke an
appointment or direct an appointment not to be
made to or within the Public Service, if it is of
the opinion that, inter alia, the person appointed
or about to be appointed does not have the
qualifications necessary to perform the duties of
the position he occupies or would occupy if
appointed. Subsection 6(3)' of the Act makes
' 6....
(2) Where the Commission is of opinion
(a) that a person who has been or is about to be appointed to
or from within the Public Service pursuant to authority
granted by it under this section, does not have the qualifica
tions that are necessary to perform the duties of the position
he occupies or would occupy, or
(b) that the appointment of a person to or from within the
Public Service pursuant to authority granted by it under this
section has been or would be in contravention of the terms
and conditions under which the authority was granted,
provision for a hearing or inquiry before revoca
tion of an appointment and, in the submission of
the respondent, can only apply to persons
already appointed. No reference is made in the
subsection to appointments that are about to be
made. The appellant's contention was that a
person whose appointment was about to be
made should also receive the protection of sub
section (3). Whether or not that view of the
subsection can be sustained the ultimate resolu
tion of the appellant's contention depends upon
whether it is unfair or unjust that the appellant
be removed from the "eligible list" without
being given an opportunity to present her case.
Moreover, the appellant was not entitled to avail
herself of the appeal procedure provided by
section 21 2 of the Act because she was not
appealing on the basis that the selection of a
person for appointment was not on the basis of
merit, but rather was challenging the revocation
of her place on the "eligible list".
6) Appellant counsel's contention was that
regardless of whether the removal of her name
from the "eligible list" was characterized as a
the Commission, notwithstanding anything in this Act but
subject to subsection (3), shall revoke the appointment or direct
that the appointment not be made, as the case may be, and may
thereupon appoint that person at a level that in the opinion of
the Commission is commensurate with his qualifications.
(3) An appointment from within the Public Service may be
revoked by the Commission pursuant to subsection (2) only
upon the recommendation of a board established by it to
conduct an inquiry at which the employee and the deputy head
concerned, or their representatives, are given an opportunity of
being heard.
2 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.
quasi-judicial or an administrative act, a hear
ing, or at least an opportunity to make represen
tations, must be granted before such removal
was effected. In counsel's submission no such
opportunity was granted. The learned Trial
Judge found [at page 35] that:
... the only duty of fairness owed by a selection or rating
board is a duty to assess honestly the merit of each candi
date for a particular appointment. If this is all that is
required of a selection board in making an initial assess
ment, I find it difficult to place a higher duty on the Public
Service Commission when it authorizes 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 candidate an opportunity to
present her case.
Lord Pearson's observation at page 547 of Pearlberg v.
Varty [1972] 1 W.L.R. 534 is instructive on this point.
Fairness, however, does not necessarily require a plurality
of hearings or representations and counter-representa
tions. If there were too much elaboration of procedural
safeguards, nothing could be done simply and quickly and
cheaply. Administrative or executive efficiency and econo
my 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.
First may I say that I am in substantial agree
ment with what was said by the learned Trial
Judge in answering the first five questions to
which he directed himself except that I find it
unnecessary to make any finding with respect to
his interpretation of the ambit of section 21 of the
Act and specifically leave such matter open for
another occasion when the circumstances are such
that a decision on that aspect is required.
In so far as his view as to the necessity for
observing procedural fairness is concerned in cir
cumstances such as those which prevail in the case
at bar, I am respectfully of the opinion that he
erred in finding that it was not a requirement in
this case. It is important to note that paragraph 8
of the agreed statement of facts states that:
No hearing was held by the Department of National Revenue
or Public Service Commission nor was a Board of Inquiry
constituted or held by either the Department or Public Service
Commission.
On the appeal counsel for the respondent reiter
ated that statement and added that the word
"hearing" was used therein, and orally by him, in
its broadest sense, i.e. she was not accorded any
opportunity to make any representations oral or
written, to the removal of her name from the
"eligible list". There is evidence on the record that
the appellant was a participant in a "counselling
session" with her group head in respect of her
"absenteeism". There is not, however, any evi
dence whatsoever that she was warned by the
group head or anyone else that if the absenteeism
persisted her name would be removed from the
"eligible list". Neither is there the slightest bit of
evidence to indicate that the Department and, in
particular, the Public Service Commission, sought
an explanation from her or permitted her to
explain her conduct. In my view, such omissions
clearly lead to the conclusion that there has been
procedural unfairness by the Public Service Com
mission in authorizing the removal of the appel
lant's name from the "eligible list".
Le Dain J. in the recent judgment of this Court
in Inuit Tapirisat of Canada v. The Right Hon
ourable Jules Léger 3 had this to say [at page 717]
about procedural fairness in the application of
statutory provisions:
Procedural fairness, like natural justice, is a common law
requirement that is applied as a matter of statutory intepreta-
tion. In the absence of express procedural provisions it must be
found to be impliedly required by the statute. It is necessary to
consider the legislative context of the power as a whole. What is
really in issue is what it is appropriate to require of a particular
authority in the way of procedure, given the nature of the
authority, the nature of the power exercised by it, and the
consequences of the power for the individuals affected. The
requirements of fairness must be balanced by the needs of the
administrative process in question.
Applying that reasoning to the case at bar it is
clear that the consequences of the exercise of the
statutory power to the appellant are serious
indeed. To be placed on an "eligible list" indicates
that each person on the list is qualified to fill a
3 [1979] 1 F.C. 710.
particular type of position and that such person
will be appointed to such a position in priority to
those who follow him or her on the list. In this
case, the appellant was thirtieth on the list. She
thus was entitled to be appointed to a position
before the person whose name was thirty-first on
the list. By removing her name from the list she
lost that right—a most serious consequence to her.
It is in the failure to recognize that there was such
a right that I think the learned Trial Judge erred.
The consequences flowing from being placed on
the "eligible list" is not part of the selection pro
cess, as the learned Trial Judge seems to have
thought, involving the exercise of a discretion by
the selection board. That process has been com
pleted when the "eligible list" is created. Its crea
tion confers, at the very least, the right of priority
to appointment over those below her on the list to
which I have previously alluded.
In my opinion, the appellant should have been
told why her name was to be removed from the
"eligible list" and given an opportunity, whether
orally or in writing, as the Commission might
determine, to respond. What Chief Justice Laskin
said at page 328 of the Report in Nicholson v.
Haldimand-Norfolk Regional Board of Commis
sioners of Police' is apposite in the circumstances
of this case.
In my opinion, the appellant should have been told why his
services were no longer required and given an opportunity,
whether orally or in writing as the Board might determine, to
respond. The Board itself, I would think, would wish to be
certain that it had not made a mistake in some fact or
circumstance which it deemed relevant to its determination.
Once it had the appellant's response, it would be for the Board
to decide on what action to take, without its decision being
reviewable elsewhere, always premising good faith. Such a
course provides fairness to the appellant, and it is fair as well to
the Board's right, as a public authority to decide, once it had
the appellant's response, whether a person in his position should
be allowed to continue in office to the point where his right to
procedural protection was enlarged. Status in office deserves
this minimal protection, however brief the period for which the
office is held.
I am of the opinion that Chief Justice Laskin's
reasoning is wholly applicable here. Accordingly,
the appeal should be allowed, the judgment of the
Trial Division should be set aside and a declaration
should be made that the removal of the appellant's
[1979] 1 S.C.R. 310.
name from the "eligible list" upon which it
appeared was done in a manner which was
procedurally unfair to her and that, thus, she is
entitled to be heard in respect to the reasons for
such removal. All other claims for relief should be
dismissed. The appellant should be entitled to her
costs of the appeal.
*.* *
RYAN J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J. (dissenting): While I am in
agreement with the reasons and conclusions of the
Trial Judge I am also of the view that on the
evidence in this case it cannot be said that the
appellant was not aware of the allegations against
her or that she was denied an opportunity to refute
those allegations.
Her removal from the eligibility list was not
because she lacked technical qualifications for the
position she was applying for but for other reasons
which are set out in letters attached as Appendices
A, B and C to the agreed statement of facts. These
letters are as follows:
Appendix A
Ms. Bernice McCarthy
Taxroll Division
September 2, 1977
Dear Ms. McCarthy,
This is to inform you that I have been authorized by the
Regional Director of the Public Service Commission to remove
your name from the eligible list for CR4 Assessing Clerks #
77-CC-8.
This has been done and, as a consequence, you will not be
appointed to the CR4 Assessing Clerk position.
This action has resulted from a review of your attendance.
Yours truly,
"Linda M. Robinson"
Linda M. Robinson
Regional Director, Personnel
Central Ontario Region
/ibm
Appendix B
Ms. Linda M. Robinson
Regional Director, Personnel
Central Ontario Region
Revenue Canada—Taxation
36 Adelaide Street East
Toronto, Ontario.
M5C IJ7
Dear Linda:
Receipt is acknowledged of your letter of August 19, 1977
regarding your proposal to remove the name of Ms. B.
McCarthy from the 77-TAX-TOR-CC-8 eligible list.
We have reviewed your proposal for requesting that the name
of Ms. B. McCarthy be removed from the CR-4 Assessing
Clerk eligible list and that she not be appointed to the position.
We concur, in this particular case, that the name of Ms. B.
McCarthy be removed from the eligible list and in accordance
with Section 6(2) of the Public Service Employment Act, this is
your authority to do so.
You will be required to inform Ms. McCarthy that this action
has been taken and we would appreciate receiving a copy of
your letter to her.
Should you have any further questions please do not hesitate to
contact this office.
Yours truly,
"L. R. Gibson"
L. R. Gibson
Regional Director
Public Service Commission
Suite 1100
180 Dundas Street West
Toronto, Ontario.
M5G 2A8
Appendix C
Ms. J. Ciebien
Public Service Commission
180 Dundas St. W.
Suite 1100
Toronto, Ontario
August 19, 1977
Dear Josie,
As we discussed, I am forwarding details of our proposal to
remove Ms. B. McCarthy from the 77-TAX-TOR-CC-8 eli
gible list.
Bernice M. McCarthy was ranked 30th on eligible list 77-CC-8
(CR4 Assessing Clerk) dated April 12, 1977. There are 31
names on the list which expires on April 11, 1978. To date the
first 15 persons have been appointed. A request has been
received to appoint the remaining 16 persons.
From the time of the establishing of the eligible list, Ms.
McCarthy's attendance and conduct have deteriorated. She has
been absent 26 1 / 2 days during these four months.
On June 22nd during a counselling session for absenteeism with
her Group Head, Ms. McCarthy used obscene language, threw
a tax file into the air and stalked out of the Supervisor's office.
She received a written reprimand for this.
On July 18th Ms. McCarthy received another written repri
mand. This time it was for unauthorized leave.
Subsequent investigation has revealed that Ms. McCarthy's
attendance record the year 76/77 was deplorable. In addition
to exhausting her sick leave for the year she was absent another
46 1 / 2 days.
Had this information been available to the Selection Board,
Ms. McCarthy would not have been found qualified for the
CR4 position.
Had Ms. McCarthy's absenteeism improved, a case may have
been made to give her the benefit of the doubt and allow her
name to remain, however, her behavior subsequent to the
establishing of the list further supports the decision of the
responsible Staffing Officer to delete her name from the list in
accordance with 21(2)(b) [sic] of the Public Service Employ
ment Regulations.
I would appreciate hearing from you as soon as possible on this.
Yours truly,
Linda M. Robinson
Regional Director, Personnel,
Central Ontario Region.
/ibm
The appellant did not reply to the letter Appen
dix A or request any further explanation for her
removal from the eligibility list. The reason is
stated in that letter and she knew what her attend
ance record was. While the letter Appendix C
refers to one counselling session with her supervi
sor on June 22, 1977 in respect of her record of
absenteeism counsel told us there were two coun
selling sessions the second one apparently resulted
in the written reprimand on July 18, 1977.
It is reasonable to assume that at these counsel
ling sessions she was made aware of the complaints
against her and had an opportunity to explain or
refute these allegations. In any event at the time
the agreed statement of facts was prepared she and
her counsel were fully aware of these complaints
and that they and not her technical qualifications
were the reason she was taken off the eligibility
list.
If the allegations against her were not true or if
she had a reasonable explanation that would justi
fy her absenteeism she had an opportunity at the
counselling sessions with her supervisor to explain
her absenteeism.
It was also open to her to ask the Trial Judge to
permit her at the trial to give evidence to refute
the allegations if they were untrue but she did not
do so.
The allegations against her were such, as to be a
major consideration in determining her fitness for
promotion and indeed were the reason she was
taken off the eligibility list.
The onus rested on her to show that she was
unfairly treated or denied natural justice, either in
that she was not given notice and was not aware of
the reasons for her being struck off the list or that
she was not given any opportunity to refute or
explain the complaints against her. She knew what
the complaints were and she was not denied an
opportunity to refute or give any reasonable expla
nation for her absenteeism. In these circumstances
there was no denial of natural justice. For these
reasons and those of the Trial Judge I would
dismiss the appeal with costs here and in the Court
below.
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.