A-697-83
Harvey Taback (Appellant)
v.
Public Service Commission (Respondent)
Court of Appeal, Heald, Mahoney and Hugessen
JJ.—Ottawa, February 1 and 2, 1984.
Public service — Rights of civil servant between discharge
from and reinstatement in Public Service with respect to
competitions and appeals — Whether incumbent on Commis
sion to establish appeal board to hear appeal against exclusion
from competition on grounds appellant not "employee" be
tween discharge and reinstatement — S. 21 appeal open to
"every unsuccessful candidate" — Trial Judge wrong to exer
cise discretion to refuse mandamus and frustrate appeal on
grounds appeal doomed to failure — Appellant entitled to
hearing before appeal board — Appeal allowed — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 2(1), 21 —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
Between his discharge from the Public Service and his
subsequent reinstatement in his position, the appellant applied
for another position within the Public Service but was excluded
from the competition on the grounds that he was not an
"employee" under the Public Service Employment Act. When
he appealed that decision under section 21 of the Act, the
Public Service Commission refused, again on the grounds that
he was not an "employee", to establish an appeal board to hear
the appeal. The appellant then applied to the Trial Division for
mandamus to force the Commission to establish an appeal
board. This is an appeal from the decision refusing that
remedy.
Held, the appeal should be allowed. The Commission's refus
al to establish an appeal board was clearly wrong as section 21
gives a right of appeal to "every unsuccessful candidate".
Furthermore, the Commission should not be able, by simple
administrative action, to prevent an appeal against its own
decision, especially when its refusal is based on the very same
reason which is being appealed.
The Trial Judge failed to address the main issue, the right of
appeal under section 21, when he dismissed the application on
the grounds that the appeal was doomed to failure. He should
not have exercised his discretion with respect to mandamus to
frustrate the appeal. The appellant had a right to have his
appeal determined by an appeal board and not by the Trial
Judge.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Landriault, [1983] 1 F.C.
636; 143 D.L.R. (3d) 163 (C.A.).
REFERRED TO:
Harelkin v. The University of Regina, [1979] 2 S.C.R.
561.
COUNSEL:
Maurice W. Wright, Q.C. and A. J. Raven for
appellant.
John H. Sims for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for appellant.
Deputy Attorney General for respondent.
The following are the reasons for judgment
delivered in English by
HUGESSEN J.: The appellant held a position in
the Public Service of Canada. As a result of
disciplinary action, he was discharged. He filed a
grievance against the discharge and this was car
ried through to adjudication under the provisions
of the Public Service Staff Relations Act [R.S.C.
1970, c. P-35]. His grievance was partly success
ful, the adjudicator holding that while the appel
lant's conduct merited disciplinary action, the
penalty of discharge was too severe. He reduced it
to a fairly short period of suspension, with the
result that the appellant was reinstated in his
position in the Public Service.
In the meantime, between the date of his dis
charge and that of the adjudicator's decision, the
appellant had become aware of a competition for
another position in the Public Service which inter
ested him. It was a "closed competition" which, by
the terms of subsection 2(1) of the Public Service
Employment Act [R.S.C. 1970, c. P-32], is "open
only to persons employed in the Public Service".
The appellant applied for the position but was
excluded from the competition on the grounds that
he was not an "employee" under the Public Ser
vice Employment Act. He appealed the decision to
exclude him from the competition, purporting to
exercise the right of appeal granted by section 21
of the Public Service Employment Act. The Public
Service Commission refused to establish an appeal
board to hear the appeal. Their grounds for doing
so were precisely the same as those which had
earlier been invoked in support of the decision
which the appellant was seeking to appeal, namely,
that he was not an "employee" within the meaning
of the Public Service Employment Act. The appel
lant then applied to the Trial Division of this
Court for mandamus to force the Commission to
establish an appeal board. It is from the judgment
of that Division [order dated May 10, 1983,
T-1019-83, not yet reported] refusing the remedy
that the present appeal is brought.
Let me say at the outset that the refusal of the
Public Service Commission to establish an appeal
board to hear the appellant's appeal pursuant to
section 21 of the Public Service Employment Act
is, in my view, clearly wrong. In the case of a
closed competition, the right of appeal is given to
"every unsuccessful candidate". On any normal
reading of those words, they include the candidate
who has been excluded because considered not to
be eligible, as well as the one who has been found
to be unqualified and the one who has simply not
been selected. As stated by Pratte J., (with whom
both Heald and Ryan JJ. agreed on this point) in
Attorney General of Canada v. Landriault [[1983]
1 F.C. 636, at page 641]; 143 D.L.R. (3d) 163, at
pages 166-167 [C.A.],
... it would seem wise to give the word "candidate" in section
21 its normal meaning which, in my opinion, would include any
person having applied for the job.
Indeed, to allow the Commission to proceed as it
has done in the present case leads to results which
are, to say the least, surprising. The original deci
sion to exclude the appellant from the competition
on the grounds that he was not an employee within
the meaning of the Public Service Employment
Act was made in the name of the Commission. By
his appeal it is obvious that the appellant ques
tioned the validity of that decision. The Commis
sion, in refusing to establish the appeal board,
gives as a reason that the appellant is not an
employee within the meaning of the Public Service
Employment Act. But that is precisely the deter
mination which the Commission has already made
and which section 21 allows to have reviewed, not
by the Commission itself but by an appeal board.
It would require very clear language indeed to
persuade me that Parliament intended that the
very body whose decision is appealed against
should be able, by simple administrative action, to
prevent that appeal from going forward.
The question of the right of the Public Service
Commission to frustrate the appellant's appeal
under section 21 was not really examined by the
Trial Judge. He mentions the Landriault decision
(supra) in passing but, as I read his reasons, he
dismisses the application for mandamus not
because the Commission was right in refusing to
establish an appeal board but because, in his view,
any appeal to such board was doomed to failure; in
his words [at page 2 of the reasons], "a futile and
a useless exercise".
With great respect, I do not think that this was
a proper basis on which to proceed. I recognize, of
course, that mandamus is always a discretionary
remedy (Harelkin v. The University of Regina,
[1979] 2 S.C.R. 561), but where Parliament has
clearly granted a statutory right of appeal to an
appeal board as in section 21 of the Public Service
Employment Act, I cannot believe that it is right
for a court to exercise its discretion so as to
frustrate that appeal. It may well be, as the
learned Trial Judge thought, that the appeal was
bound to fail. I prefer not to comment on that
question. The fact remains that the appellant had
a right to have his appeal determined by the
appeal board and not by the learned Trial Judge. I
would also point out that, as I read section 21, the
parties are entitled to lead evidence before an
appeal board, which right is rendered nugatory by
the refusal of mandamus; in the absence of any
pleadings, it is not possible to say that no evidence
could be led at the appeal board hearing which
might have the effect of changing the outcome.
In my opinion, the appellant is entitled to his
hearing before the appeal board and this Court
ought not to deny it to him. I would allow the
appeal with costs, set aside the judgment of the
Trial Division and direct the issuance of an order
in the nature of mandamus directing the Public
Service Commission to establish an appeal board
in accordance with the provisions of section 21 of
the Public Service Employment Act for the pur
pose of conducting a hearing into the appeal of the
appellant in respect of Competition No. 82-TAX-
HO-CCID-15.
HEALD J.: I concur.
MAHONEY J.: I agree.
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.