A-1029-83
Attorney General of Canada (Applicant)
v.
Serge Brault and Pierre Dubois (Respondents)
and
Bernard Lenoir, Daniel Beaupré and Pierre
Delage, Director, Appeals Branch, Public Service
Commission (Mis -en-cause)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Ottawa, March 7 and May 23, 1984.
Public service — Appointment to position — Department of
National Revenue — Canine detection units established —
Customs inspectors interviewed to determine aptitude for
loving, caring for and living with dog — Mis -en-cause selected
as dog handlers — Appointments appealed on ground selection
not based on merit as knowledge and abilities as customs
inspector not considered — Board erred in interpreting
remarks in Kelso v. R., [19801 1 F.C. 659 (C.A.) as meaning
change in duties of position making it different position —
Addition of dog as working tool not altering nature of position
— Board erred in assuming creation of position not requiring
clear decision and indication of intent by Minister or repre
sentative — New positions not created — No appointment to
new position — Application to set aside Board's decision
allowed — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 21 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Financial Administration Act, R.S.C. 1970, c.
F-10, s. 7 — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35.
This is an application to set aside a decision of an Appeal
Board, allowing the respondents' appeal of appointments. The
Department of National Revenue established a "canine detec
tion unit". Customs inspectors were interviewed to determine
their aptitude for loving, caring for and living with a dog. The
mis -en-cause were selected to become "dog handlers". The
respondents appealed pursuant to section 21 of the Public
Service Employment Act, alleging that the selection was not
based on merit, since knowledge, abilities and personal suitabil
ity as a customs inspector had not been considered. The
Department argued that there was not an appointment to a
position, as the mis -en-cause still held their positions of customs
inspector, and their appointments as "dog handlers" simply
gave them a new tool to assist them in the performance of their
duties. The Board interpreted extracts from Kelso v. R., [1980]
1 F.C. 659 (C.A.) as meaning that a change in the "qualifica-
tions, functions and responsibilities of a position makes it a
different position which must be filled in accordance with the
Public Service Employment Act". The Board held that the
mis -en-cause had been appointed to new positions, and that
their appointments could be the subject of an appeal under
section 21.
Held (Pratte J. dissenting): The application should be
allowed.
Per Marceau J. (Hugessen J. concurring): The Board erred
in its interpretation of Jackett C.J.'s remarks in Kelso. Jackett
C.J.'s purpose was to deny to a department the right to
unilaterally change the qualifications required of an appointee
to a position during the period that he continues to occupy the
position. One of the reasons given was that "Any such change
in qualifications would ... make the position something other
than that to which he was appointed." His observations could
not be used as a basis for the general conclusion drawn by the
Board. The addition of a dog as a working tool for a customs
inspector, even if the dog must be kept at home, does not alter
the position of a customs inspector so as to change its "nature".
The Board erred in assuming that the creation of a position
did not require a clear decision and an unambiguous indication
of intent by the Minister or his representative. Implicit in the
Board's decision was the premise that a position can be created
by a situation of fact, i.e., by the behaviour of management,
and even against the wishes of the administrative authorities in
that department. This proposition is indefensible. Since the
creation of a position involves the identification and definition
of a function requiring the hiring of a person, and since the
power of creating a position is a legal power involving the
taking of a decision, to create a position a firm and unambig
uous expression of intent will be required. Acceptance of the
Board's premise would mean that by management directives,
the authorities of a department could, without their knowledge
and even against their will, create and abolish positions. The
purpose of the remarks in Kelso relied upon by the Board was
to show that the Minister could not unilaterally alter the
qualifications of a position. Second, if an alteration had a
discriminatory effect, it would probably be open to remedy
under the Public Service Staff Relations Act. Finally, if an
alteration is accepted by the incumbent, has no discriminatory
effect on others and entails no change in classification or pay
increase, it should be allowed. New positions of "dog handler"
were not created and there was no appointment to a position
within the meaning of the Public Service Employment Act.
Per (Pratte J. dissenting): The only question is whether the
Board correctly held that the selection of dog handlers con
stituted appointments. As the Act does not define "appoint-
ment" and "position", these words must be given their ordinary
meaning, according to which a person is appointed to a position
when he is designated to perform a job or function. Accordingly
a person who already has a position is appointed to another
position if he is designated to perform a job different from the
one held by him. It is not necessary to expressly appoint him to
such a position: it will suffice if those in authority appoint him
to permanently carry out a new job which is substantially
different from that associated with the position held by him.
The new duties as "dog handler" were sufficiently different
from those of a customs inspector to constitute a different job.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Kelso v. R., [1980] 1 F.C. 659 (C.A.).
REFERRED TO:
Bauer v. Public Service Appeal Board, [1973] F.C. 626
(C.A.); Brown v. Public Service Commission, [1975]
F.C. 345 (C.A.).
COUNSEL:
James M. Mabbutt for applicant.
Robert W. Côté for respondents.
No one appearing for mis -en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gowling & Henderson, Ottawa, for respond
ents.
No one appearing for mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J. (dissenting): The applicant is appeal
ing pursuant to section 28 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] from a
decision of a Board established by the Public
Service Commission, allowing an appeal made by
the respondents Brault and Dubois in accordance
with section 21 of the Public Service Employment
Act [R.S.C. 1970, c. P-32]. By that appeal, the
respondents had challenged the appointment of the
mis -en-cause Lenoir and Beaupré to the position of
"dog handler" in a "canine detection unit" estab
lished by the Department of National Revenue in
Montreal.
On July 16, 1982, the Department of National
Revenue published a notice addressed to customs
inspectors (level PM-01) in the Montreal area
informing them that a "canine detection unit"
would be established for the Montreal area and
inviting anyone who wished to be assigned to such
a unit to apply by submitting applications to the
address indicated before the date mentioned. This
notice gave the following details regarding this
"canine detection unit" and the position of "dog
handler":
DOG HANDLER
The Department recently authorized the establishment of a
canine detection unit for the Montréal area. In addition to the
dog and its handler, the unit will consist of a car, a kennel, a
pen and special equipment.
PROGRAM
The successful candidate will receive on-the-spot training for
approximately three months, most of which will be in Montréal.
The training will focus on searches of vehicles, luggage and
ships. Dogs will be trained in such areas as the detection of
various drugs, weapons and ammunition as well as obedience,
agility and tracking.
OPEN TO
Written applications by qualified PM-01 customs inspectors in
the Montréal area will be considered. Candidates should indi
cate why they are interested and indicate any previous experi
ence in dog handling.
To be offered this assignment, and interested employee must
meet the following conditions:
— meet the language requirements of the position BEFORE
assignment (AABB imperative);
— agree to perform these duties for at least three consecutive
years;
— have a thorough knowledge of the duties of a customs
inspector and experience in that position;
— be in good health;
— possess good communication skills;
— be willing to travel and hold a driver's licence;
— be willing to devote the necessary time and energy to caring
for a detection dog and maintaining related equipment;
—occupy premises with a large enough yard to accommodate a
kennel and pen.
When this notice was published several customs
inspectors, including the respondents Brault and
Dubois and the mis -en-cause Lenoir and Beaupré,
applied. All were called to an interview designed to
establish which were the most suitable candidates
to become "dog handlers". The respondents Brault
and Dubois were told shortly afterwards that their
names had not been selected. The mis -en-cause
Lenoir and Beaupré had been appointed. The
respondents made use of section 21 of the Public
Service Employment Act and appealed these two
appointments. They maintained that the merits of
the various candidates were not really considered
in the competition, as only some of the qualifica
tions required for "dog handlers" had been taken
into account.
The Department concerned challenged this
appeal on one ground, namely that the selection of
the mis -en-cause Lenoir and Beaupré did not con
stitute an appointment to a position in the Public
Service, but was simply an assignment which could
not be the subject of an appeal under section 21.
According to this argument, the mis -en-cause
Lenoir and Beaupré still held their positions of
customs inspector, both before and after their
appointments, and in appointing them as "dog
handlers" the Department had simply given them
a new tool to assist them in performing some of
their duties.
The Board dismissed this argument. First, it
expressed the view, relying on the decision of
Jackett C.J in Kelso,' that a [TRANSLATION]
"change to the qualifications, functions and
responsibilities of a position makes it a different
position which must be filled in accordance with
the Public Service Employment Act." Then, turn
ing to the facts of the case at bar, it cited the
competition notice which I have reproduced above
and went on:
[TRANSLATION] Further, the Department's representative
admitted at the hearing that in view of the particular nature of
a dog as a working tool, a customs officer to whom one was
assigned had to have certain special qualifications, and not all
customs officers would be able to work with dogs. Someone
who was assigned a dog had to agree to keep it at his house,
look after it, exercise it for one or two hours every day during
working hours, and so on. It is for this reason that in the
interviews with interested customs officers they were asked
questions such as whether their spouses were willing to have a
dog at home, whether the neighbours had animals at home,
whether they had large yards, and whether there were other
animals in the house.
In view of the observations of Jackett C.J., of the Federal
Court of Appeal, referred to above, on the effect of changes
made to the qualifications, duties and responsibilities of a
position, and taking into account the additional qualifications,
duties and responsibilities expected of a "dog handler", in
addition to the usual ones of a customs inspector, I think it is
clear that in imposing them the Department was in fact estab
lishing and creating positions that were different from those of
a customs inspector. In my view, it is clear that having regular
custody at home of a specially trained dog, spending one to two
hours a day of his working time exercising it, being responsible
for the maintenance of equipment relating to the custody and
use of the dog, and being subject to conditions in addition to
' Kelso y. R., [1980] 1 F.C. 659 (C.A.), at pp. 663-665.
those usually imposed on ordinary customs inspectors, makes
the position of a "dog handler" quite different from that of an
ordinary customs inspector. The Department even admitted
that special qualifications were needed in order to become a
"dog handler", and it was not something which every customs
inspector could do.
In my view, the arguments of the Department that the dog is
merely a working tool are untenable. The continuous custody
and handling of a dog implies much more time and skill than
simply using a boat, car, metal detector or other mechanical
device. Furthermore, the fact that the position of "dog handler"
may conceivably have the same PM-01 classification, or the
same number, as the position of a customs inspector preceding
it does not mean that it is the same position. The Department
may not have made up special job descriptions for "dog han
dler" positions, but in my opinion this is wrong. The position
description for a Customs Inspector PM-01 (Exhibit M-1)
which I was given at the hearing may be accurate for ordinary
customs inspector positions, but in my view it in no way reflects
the special qualifications, duties and responsibilities expected of
a "dog handler" as mentioned on poster 82-44, or as presented
at the appeal hearing. As regards the single national statement
of qualifications, which the Department said it uses for customs
inspector competitions, it is apparent that in circumstances the
specifications contained in poster 82-44 added considerable
other material.
In short, therefore, I consider that when Messrs Beaupré and
Lenoir were appointed to "dog handler" positions, they were
automatically assigned to positions that were distinct and dif
ferent from those previously held by them, even though they
might have the same classification and the same number.
The Board accordingly concluded that the mis -
en-cause Lenoir and Beaupré had in fact been
appointed to new positions pursuant to the Public
Service Employment Act, and that their appoint
ments could be the subject of an appeal under
section 21. Having decided this, the Board held
that the disputed appointments should be revoked
because they had not been made "based on selec
tion according to merit".
The only question raised by the case at bar is
whether the Appeal Board correctly held that the
selection of the mis -en-cause Lenoir and Beaupré
as "dog handlers" constituted appointments within
the meaning of the Public Service Employment
Act. If this question is to be answered in the
affirmative, applicant admits that the appoint
ments of the mis -en-cause were not made based on
selection according to merit.
As counsel for the applicant emphasized, the
Public Service Employment Act frequently uses
the expression "appointment to positions in the
Public Service" but does not define the words
"appointment" and "position". It follows that
these words are used in their ordinary sense,
according to which a person is appointed to a
position when he is designated to perform a job or
function. Accordingly, a person who already has a
position in the Public Service, as was the case with
the mis -en-cause Lenoir and Beaupré, is appointed
to another position if he is designated to perform a
job different from the one already held by him. In
my view, for someone who already has a position
in the Public Service to be appointed to a new
position, it is not necessary for the authorities in
question to expressly appoint him to such a posi
tion: it will suffice if such authorities, without
expressly creating a new position, appoint him to
permanently carry out in future a new job which is
substantially different from that associated with
the position held by him until that time.
The mis -en-cause Lenoir and Beaupré were cus
toms inspectors when they were selected to per
form the duties of "dog handler". To decide
whether as such they were being appointed to new
positions, it must be determined whether their new
duties were sufficiently different from those of a
customs inspector to constitute a different job. The
Board answered this question in the affirmative. I
consider it was correct, as the function of a "dog
handler" adds such significant responsibilities and
obligations to those of a customs inspector that it
seems impossible to accept the applicant's argu
ment that the selection of the mis -en-cause as "dog
handlers" was merely an assigment of duties
within the ordinary limits of their jobs as customs
inspectors.
For these reasons, I would dismiss the
application.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: This application made pursuant
to section 28 raises a question which is much more
difficult and significant than might appear from
the context in which it arises and its immediate
practical connotations. In my view, it actually
raises a question which goes to the heart of the
internal management powers of the administrative
units in the federal Public Service. Unfortunately,
I do not concur in the view of my brother Pratte J.
as to the exact nature of this question and the
solution which it should be given, and I would not
dispose of the application as suggested by him.
The reasons explaining my disagreement and sup
porting my point of view are as follows.
There is little need to review the facts, except
perhaps to note the basic points and so place the
question for decision in its practical context. In the
summer of 1982 the Department of National
Revenue, Customs and Excise, issued a notice
addressed to customs inspectors in the Montreal
area (level PM-01), announcing that it intended to
create a canine detection unit and inviting inspec
tors interested in working with a dog to submit
their applications to management. The notice, the
text of which is contained in the reasons of Pratte
J., mentioned, as we have seen, a number of
conditions which the applicant would have to meet
"in order to be offered this position". Several
inspectors applied. Interviews were held with each
of the candidates, designed strictly to determine
their aptitude for loving, caring for and living with
a dog, and management announced its choice, a
Mr. Alexander. The two respondents, who were
disappointed at not having been selected, decided
to file a complaint with the Public Service Com
mission. Alleging that the selection had not been
made in accordance with the requirements defined
in the Public Service Employment Act (R.S.C.
1970, c. P-32) for an appointment to a position to
be made on merit, since management had not
taken into account the knowledge, abilities and
personal suitability of the candidates as customs
inspectors, the respondents appealed under section
21 of the said Act. 2 The Department contested. It
immediately argued that the Public Service
Employment Act was in no way involved, so there
could be no question of complying with the
'The applicable portions of section 21 read as follows:
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 opionion of the Commission, has been
prejudicially affected,
(Continued on next page)
requirements of that Act, or for that matter of any
appeal in accordance with it. This was so, the
Department maintained, because there had been
no appointment to a position: the dog was only a
working tool given to a customs officer to enable
him to perform his duties; no position of "dog
handler" existed in the Department; although
about a dozen customs inspectors throughout
Canada worked with dogs, the only positions were
those of customs inspectors. There had never been
any question of creating new positions, nor of
transferring incumbents to new positions; this sit
uation was clear at the outset and had not
changed; the position held by the candidate select
ed had remained the same and his appointment
was unchanged. The panel of the Board formed to
hear the appeal found the Department's contention
unacceptable on the ground that there had in fact
been a competition, but the decision revoking the
appointment of Mr. Alexander became inappli
cable when, shortly after it had been challenged in
this Court, Mr. Alexander himself decided not to
work with dogs. Considering that there was no
reason to change its position, the Department
simply announced that the two mis -en-cause
Lenoir and Beaupré were replacing Mr. Alexan-
der, and the respondents then repeated their chal
lenge on the same basis, filing a new appeal as the
result of which a new Board was formed. As we
have seen in the observations of Pratte J., the
Board gave the arguments of the Department
greater consideration on this occasion and did not
simply find, as on the first occasion, that since
there had been a closed competition pursuant to
the Public Service Employment Act, the require
ments of that Act should apply, a reasoning which
manifestly confused form and substance: it recog
nized that the essentiel condition for the appeal of
the respondents to be allowed—and the only one at
issue—was that there had been an appointment to
(Continued from previous page)
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.
a new position. Its reasoning, however, was ulti
mately just as brief as that of the first Board:
interpreting certain extracts from the reasons of
the former Chief Justice of this Court in Kelso v.
R., [ 1980] 1 F.C. 659 (C.A.), as implying that "a
change in the qualifications, duties and respon
sibilities of a position makes it a different position"
(case page 67), it had no hesitation in finding that,
in acting as it did, the Department [TRANSLA-
TION] "was in fact establishing and creating posi
tions different from those of customs officers"
(case page 68). It is of course this decision of the
second Board which is now before the Court.
This decision of the Board now at issue at once
raises a question of definition, in particular of the
word "position" ("poste" in French), which the
Act uses several times without ever giving a defini
tion of it. In this regard, I will simply say that I do
not see how it is possible to speak of one position
being different from another, in terms of content,
without first agreeing on what characterizes and
identifies a particular position and distinguishes it
from others. The Board had nothing to say in this
regard, and unlike it, I do not consider that giving
the word "position" the ordinary meaning of "job"
("emploi") or "function" ("fonction") takes care
of the difficulty. In any case, no one in ordinary
speech would be likely to say he has changed his
"job" because his boss slightly altered some of his
responsibilities, or that his "function" is no longer
the same since he has acquired a new working tool
or adopted a new work method. In my view, the
Chairman of the Board gave the observations of
the former Chief Justice of this Court in Kelso a
meaning which they did not have. The purpose of
Jackett C.J. in that case was to deny to a depart
ment the right to [unilaterally] change "the
qualifications that must be satisfied by a person so
appointed to a position during the period that he
continues to occupy that position" (page 663), and
to alter "the nature of [a] position ... in so far as
a person already appointed thereto is concerned"
(page 664), and one of the reasons which he gave
was stated in the sentence which seems to have
attracted the Chairman's attention: "Any such
change in qualifications would, in effect, make the
position something other than that to which he was
appointed." The Judge did not explain what he
meant by the "nature" of a position or what was
covered by the phrase "change the qualifications
that must be satisfied" in order to occupy the
position (although in the case there involved,
where the position had been designated bilingual,
the facts were clear enough); and in any case, his
observations could not be used as a basis for the
general conclusion drawn by the Chairman of the
Board, namely that "a change in the qualifica
tions, duties and responsibilities of a position
makes it a different position." Accordingly, I do
not see by what principle and in accordance with
what definition it can be said that the addition of a
dog as a working tool for a customs inspector, even
if the dog must be kept at home, alters the position
of a customs inspector so as to change its "nature"
(and I deliberately use the word used by Jackett
C.J.). That is all I intended to say in this question
of definition, for in my view, it is not the primary
difficulty raised by the decision a quo.
The primary difficulty, the solution of which
appears to me to be fraught with consequences,
concerns the premise implicit in the decision, that
a position can be created in a department tacitly
and even against the wishes of the administrative
authorities in that department. Is such a premise
valid? I simply cannot believe that it is.
It was just mentioned that the Act nowhere
defines what is meant by a position in the Public
Service. It should also be added at this point that it
nowhere says who may create a position in the
Public Service or how such a position may be
created.
The question of who may create a position clear
ly presents no problem at the theoretical or practi
cal levels. It will readily be admitted that the wide
general powers of management conferred on the
Minister by Parliament in making him responsible
for management of the administrative unit repre
sented by the department, include that of deter
mining the number of employees needed to per
form the department's functions, the qualifications
and abilities which each of those employees must
have and what they will be required to do. Subject
to the constitutional obligation of obtaining au
thority from Parliament to spend public funds,
therefore, the Minister has the power to create a
position. The former Chief Justice of this Court
indeed discussed this point with some care in
Bauer v. Public Service Appeal Board, [1973]
F.C. 626 (C.A.), then in Brown v. Public Service
Commission, [1975] F.C. 345 (C.A.), at pages 348
et seg, and again in Kelso, referred to above.
While the question of who may create a position
in the Public Service has thus been amply dealt
with by the courts, I have not been able to find any
case which has dealt with the way in which this
power could be exercised. Perhaps it has always
been considered that the answer, in theoretical
terms of course (as there is no question of inquir
ing into procedures), was obvious. So far as I am
concerned, it would appear that since the creation
of a position involves the identification and defini
tion of a function requiring the hiring of a person,
and since the power of creating a position is a legal
power involving the taking of a decision, 3 it can
hardly be doubted that to create a position a firm
and unambiguous expression of intent will be
required. In adopting as its premise that a position
can be created simply by a situation of fact,
merely by the behaviour of management, and even
contrary to the wishes of the Minister or his
representatives, the Board in my opinion is setting
forth a proposition which is theoretically indefen
sible.
Additionally, the Board's reasoning appears to
me to be untenable on a practical as well as
theoretical level. If such reasoning were admitted
and generally applied it would mean that at any
time, by management directives, the authorities of
a department could, without their knowledge and
even against their will, create positions (and also, I
assume, abolish them). An analysis of the func
tions within a department at any given time could
lead to astonishing results in terms of identifying
and defining positions and the legal status of their
incumbents! It might be thought that the reason
' Jackett C.J. writes, in a note to his reasons in Brown, cited
above (at page 348): "Technically, a `position', as I understand
the term, is the legal authority to employ a person in the Public
Service .... "
ing has a practical advantage nonetheless in that it
prevents the Minister (or his managers), in the
exercise of the general powers of management
conferred on him, or of those specified in section 7
of the Financial Administration Act (R.S.C. 1970,
c. F-10), which he is required to exercise by dele
gation from the Treasury Board, from modifying
at his discretion the duties, responsibilities and
qualifications of employees in his department, but
this is not the case. First, it will be recalled that
the very purpose of the observations by Jackett
C.J., taken from Kelso and cited by the Chairman
of the Board, was to show that the Minister could
not unilaterally alter the qualifications of a posi
tion. Second, if an alteration, even one accepted by
the employee, had some discretionary effect on
fellow employees, it would probably be open to
remedy under the Public Service Staff Relations
Act (R.S.C. 1970, c. P-35). Finally, if an altera
tion is accepted by the incumbent of the position,
has no discriminatory effect on others and entails
no change in classification or pay increase, it is
hard to see why it should not be allowed.
I therefore consider that the Board erred in
assuming that the creation of a position in the
Public Service did not require a clear decision and
an unambiguous indication of intent by the Minis
ter or by someone empowered to act for him: that
it could result simply from a situation of fact or
the behaviour of managers, and could even occur
without the knowledge, indeed against the wishes
of a department. In my view, in the circumstances
disclosed by the record and admitted by the Board,
new positions of "dog handler" were not created:
accordingly there was no appointment to a position
within the meaning of the Public Service Employ
ment Act, and section 21 of that Act could be
applied.
I would therefore set aside the decision of the
Board and refer the matter back to it to be decided
in accordance with the principles and propositions
which I have just discussed.
HUGESSEN J.: I concur.
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.