A-390-80
Arthur Preece and Ramnarine Barran (Appli-
cants)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Ryan and Le Dain JJ. and Kerr
D.J.—Ottawa, January 27 and May 4, 1981.
Judicial review — Public Service — Application to review
and set aside a decision of the Public Service Commission
Appeal Board — Eligible list was established as a result of
closed competition — Notice of competition did not indicate
that other positions of a similar nature and level or at a lower
level might be filled from the competition — Plaintiffs appeal
staffing of another position from eligible list — Section 18 of
the Public Service Employment Act provides that where eli
gible lists established for a position are exhausted, appoint
ments may be made from a list established for positions of a
similar occupational nature at a higher level — Board found
that where no eligible list exists, the list is exhausted
Whether Board erred in its interpretation of s. 18 — Applica
tion is allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. for applicants.
Edward R. Sojonky for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside a decision, dated May 28,
1980, by a Public Service Commission Appeal
Board constituted to hear appeals brought by the
applicants, Mr. Preece and Mr. Barran, pursuant
to section 21 of the Public Service Employment
Act, R.S.C. 1970, c. P-32.
A closed competition was held in respect of a
position in Canada Post, Fleet Maintenance,
Transportation, Metro Toronto, Ontario Postal
Region. The position was described as Mainte
nance Supervisor and Instructor (GL-ELE-4 C3)
(I will refer to it as "the C3 position"). The notice
of the competition did not indicate that other
positions of a similar nature and level or at a lower
level might be filled from the competition.
•
An eligible list was established. Later an open
ing occurred for a position described as GL-ELE-4
C2 ("the C2 position"); a person who had been
placed on the eligible list established for the C3
position was selected. This selection is the subject
matter of this application. Mr. Barran was also on
the eligible list, but was not selected because he
was lower in rank than the person selected. Mr.
Preece's application for the position had, it
appears, not been filed in time, but he nonetheless
appealed the appointment.
The disposition of the application depends on
the interpretation of section 18 of the Public Ser
vice Employment Act, which provides:
18. Where an appointment under this Act is to be made to a
position by competition, the appointment shall be made from
an eligible list established for that position or for positions of a
similar occupational nature and level, but where such list is
exhausted, the appointment may be made from an eligible list
established for positions of a similar occupational nature at a
higher level.
Section 18 requires that where, as here, an
appointment is to be made to a position by compe
tition, it must be made from an eligible list. Sec
tion 17 of the Act' requires that an eligible list be
established after a competition is held. It is from
1 Subsections 17(1),(2) and (3) of the Public Service
Employment Act provide:
17. (1) From among the qualified candidates in a competi
tion the Commission shall select and place the highest rank
ing candidates on one or more lists, to be known as eligible
lists, as the Commission considers necessary to provide for
the filling of a vacancy or anticipated vacancies.
(2) An eligible list is valid for such period of time as may
be determined by the Commission in any case or class of
cases.
(3) When establishing an eligible list in the case of a
closed competition, the Commission shall place the qualified
candidates thereon in order of merit.
such an eligible list that section 18 requires an
appointment to be made. But section 18 provides
alternatives. An appointment to a position may
also be made from an eligible list established ".
for positions of a similar occupational nature and
level." And, where an eligible list established for
the position to be filled or for positions of a similar
occupational nature and level "is exhausted",
then—and in my view only then—"... the
appointment may be made from an eligible list
established for positions of a similar occupational
nature at a higher level."
The ground taken by the applicants in their
appeals to the Appeal Board was that the competi
tion had been held to fill a C3 position, no indica
tion having been given that C2 positions might
also be filled on the basis of the competition which
was to be held. Thus, it was submitted, the C2
position was filled without there having been a
competition for it. This, it was argued, was fatal to
the appointment.
Before the Appeal Board, the case of the
Department was that the appointment to the C2
position had been made from an eligible list estab
lished for a position, the C3 position, which was
similar in nature to the C2 position, but at a
higher level, and was thus authorized by the clos
ing words of section 18.
The Appeal Board adopted the submission of
the Department and dismissed the appeals. The
Board decided that the C3 and C2 positions were
similar in nature, but that the C3 position was at a
higher level. Thus the appointment was authorized
by the closing words of section 18. The Board
recognized that no eligible list had been estab
lished for the C2 position. Nonetheless, the Board
stated: "... when no eligible list exists, the eligible
list is, in fact, `exhausted'."
Counsel for the applicants submitted that this
constituted error. In my view, it was a misinterpre
tation of the closing words of section 18 to hold
that the words can justify resort to an eligible list
established for positions of a similar occupational
nature but at a higher level where no eligible list
has been established for the position to be filled or
for positions of a similar nature and level to the
position to be filled: a list can be said to be
exhausted only if it existed.
But counsel for the Deputy Attorney General, in
support of the decision actually reached by the
Appeal Board, made a submission which appears
to me to be inconsistent with the position taken by
the Department before the Appeal Board. The
submission was, as I understood it, that the C3 and
C2 positions were positions of a similar occupa
tional nature and level and thus, by virtue of the
first alternative provided in section 18, an appoint
ment to the C2 position could be made, without
further competition, from the eligible list prepared
as a result of the C3 competition. Counsel argued
that the C2 and C3 positions were similar in
nature; and, indeed, I would note that the Appeal
Board, after considering submissions on behalf of
the representatives of the Department and of the
appellants, did so determine. Counsel then referred
to the position designations, GL-ELE-4 (C3) and
GL-ELE-4 (C2), and submitted that the "4" in
each designation was used, and was generally
understood in the Public Service to be used, to
designate the level of the positions, and that the
C3 and C2 designations were merely used to indi
cate sub-categories within the same level. The
positions were, he submitted, similar in nature and
at the same level, and thus were similar in nature
and level. This being so, by virtue of the first
alternative provided in section 18, the appointment
was made in accordance with the law.
I may say that, if I were satisfied that the
positions were similar in nature and level, I would
be of opinion that the appointment could properly
have been made as it was even though the notice of
the competition had not in terms specified that
appointments might be made to C2 as well as to
C3 positions or that successful candidates might be
eligible for appointment to similar positions.
Section 18 provides that an appointment may be
made to a position from an eligible list established
for a position which is of a similar nature and
level. I take it that the need for a competition is
satisfied by the similarity in nature and level be-
tween the position for which the competition was
held and the position to which the appointment is
made.
My problem is, however, in being satisfied, on
the basis of the record before us, that the designa
tions of the positions do have the significance
counsel seeks to attach to them and in being
satisfied that they are understood as having or
should reasonably be understood as having this
significance by affected members of the Public
Service.
Because of the Appeal Board's error in law in
interpreting the closing words of section 18 and
because I am far from being certain that the
Board would have dismissed the appeals on the
basis of the first alternative in section 18, I would
grant the section 28 application and set aside the
decision under review. I would direct a new inquiry
to be conducted in respect of these appeals, the
inquiry to be conducted with these reasons in
mind. This, in my view, is necessary having in
mind that the issues raised by reliance on the first
alternative in section 18 could best be dealt with
on the basis of a full hearing. The new inquiry may
be held by the same Appeal Board or by another
Appeal Board appointed for the purpose.
An issue was also raised by counsel for the
Deputy Attorney General concerning the status of
each of the applicants to appeal to the Appeal
Board. It was submitted that Mr. Barran lacked
status to appeal because, having been placed lower
on the eligible list than the successful candidate,
he was not adversely affected by the appointment.
I am of the view that this objection is not sustain
able. Mr. Barran, though placed on the eligible
list, was an unsuccessful candidate within the
meaning of that term in section 21 of the Act in
that he was not selected for appointment to the
vacant position, and his appeal was against the
selection. It was also submitted that Mr. Preece
was not eligible to appeal because he had not filed
his application to participate in the competition in
time. I would leave this question to the Appeal
Board on the new inquiry to be answered on the
basis of the facts as developed in the new inquiry. I
would merely indicate that, ordinarily, a person
who does not submit his application within the
time stipulated for a competition can hardly be
considered as having been a candidate.
* * *
LE DAIN 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.