Judgments

Decision Information

Decision Content

A-560-89
Attorney General of Canada (Applicant)
v.
G. Blashford and D. Taillefer (Respondents)
and
M.-Nicole Ladouceur (Mise en cause)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. BLASHFORD (C.A.)
Court of Appeal, Marceau, MacGuigan and Décary JJ.A.—Ottawa, December 11, 1990 and January 15, 1991.
Public Service Selection process Competitions Respondents screened out of competitions as not having con siderable second-level supervisory experience Public Ser vice Commission Appeal Board upholding respondents' appeals under Public Service Employment Act, s. 21 Rational link between selection standards and merit principle Qualifications and selection standards distinguished P.S.C., Selection Board lacking authority to tamper with basic qualifications prescribed by Department.
This was a section 28 application to set aside the decision of a Public Service Commission Appeal Board upholding appeals brought by the respondents under section 21 of the Public Service Employment Act. Both respondents had entered a first competition for a position as Manager of a Canada Immigra tion Centre and respondent Blashford competed in a second competition, for the position of Assistant Manager. Both posi tions were at the PM-5 level and required, among the basic qualifications, considerable second-level supervisory experience. Both were screened out, the Selection Board having concluded that they failed to meet the supervisory experience requirement. The test established by the Selection Board was that candidates must have two years' second-level supervisory experience within the preceding five years with one of the two years being continual experience. Both respondents challenged the selection process and successfully appealed to a Public Service Commis sion Appeal Board which found that the Selection Board had erred in establishing the criteria relating to supervisory experi ence and had breached the fundamental rule that a rational link must exist between selection standards and the merit principle. The Attorney General's argument was that the Appeal Board erred in law (1) in holding that there was no rational link between the Selection Board's definition of consid erable second-level supervisory experience and the merit princi ple, and (2) in attributing to the conduct of the Selection members such impropriety as would cast doubt on their impar tiality in establishing the selection standards.
Held, the application should be dismissed.
Per Marceau J.A.: There was no incompatibility between the definition given by the Selection Board to the experience qualification and the merit principle. But there is a clear distinction between the merit principle which governs the selection process that the Public Service Commission follows in the exercise of its duty to judge and rank candidates and the establishment of basic qualifications which is the exclusive prerogative of the Department. The Federal Court decision Delanoy v. Public Service Commission Appeal Board, relied on by the Appeal Board, does not apply to the case at bar since it was concerned not with basic qualifications but with selection standards. The Public Service Commission or its "agent", the Selection Board, has no authority to tamper with the basic qualifications prescribed by the Department by adding to them or changing part of them. Bambrough v. Public Service Com mission and Re Boychuck and Appeal Board Established by the Public Service Commission et al. should also be distin guished since in thoses cases, the additional requirements had been made with the active participation of the Department while in the present case, the decision to restrict the scope of a basic requirement by introducing rigid temporal criteria was made by the Selection Board itself and alone.
Per Décary J.A. (concurring): The establishment of qualifi cations for a position in the Public Service is a function of the department concerned and not of the Public Service Commis sion. An appeal board set up under the Act can only enquire into the question whether the merit principle prescribed by section 10 has been observed in the selection and appointment of a candidate; a selection board or a screening board set up by the Commission can no more than the Commission itself or an appeal board inquire into the qualifications established by a department for a position. The case of Bambrough v. Public Service Commission, which decided that the Commission has the power to participate in the establishment of qualifications once the selection process has begun, is authority for the proposition that the Commission may at the most be involved in a mere reasonable elaboration of the requirements suggested by the original qualifications.
In the case at bar, the Selection Board, in narrowing as it did the qualifications established by the Department, was clearly acting beyond its or the Commission's jurisdiction. In introduc ing rigid temporal criteria, it usurped or overrode the depart mental authority to establish the qualifications for a position. The decision Delanoy v. Public Service Commission Appeal Board, which is authority for the proposition that selection standards prescribed by the Commission must have a rational link with the merit principle, had no application to the case at bar since the guidelines here at issue were related not to selection standards but to qualifications. The wording of the qualification—considerable second-level supervisory experi- ence—was particularly vague and the Commission should have asked the Department, before advertising the competition, for a more specific wording or to prescribe selection standards.
Per MacGuigan J.A. (concurring in the result): The guide lines in the case at bar were analogous to the selection stand ards in Delanoy in that they were made by the Public Service Commission through the Selection Board rather than by man-
agement. By virtue of section 10 of the Act, every action of the Commission or its delegates in relation to appointments is governed by the merit principle. The error which the Appeal Board found to exist in the Selection Board's procedure was not simply that the latter Board added qualifications, but rather that what it had added had the character of arbitrariness. In so holding, the Appeal Board applied a correct view of the law to the facts as it found them. The Appeal Board's final com- ment—relating to the doubtful impartiality of the Selection Board—was not intended as a separate reason for decision, but rather as an additional indication of the arbitrariness it had already identified.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10, 12, 21.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Delany v. Public Service Commission Appeal Board, [1977] 1 F.C. 562; (1976), 13 N.R. 341 (C.A.); Bam- brough v. Public Service Commission, [1976] 2 F.C. 109; (1975), 12 N.R. 553 (C.A.); Re Boychuck and Appeal Board Established by the Public Service Commission et al. (1982), 135 D.L.R. (3d) 385; 42 N.R. 204 (F.C.A.).
CONSIDERED:
Bauer v. Public Service Appeal Board, [ 1973] F.C. 626; (1973), 40 D.L.R. (3d) 126; 6 N.R. 183 (C.A.).
REFERRED TO:
Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A.); Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.); Attorney General of Canada v. Appeal Board established by the Public Service Com mission, [1982] 1 F.C. 803 (C.A.); Rex v. Sussex Jus tices. Ex parte McCarthy, [1924] 1 K.B. 256; Ahluwalia, 1987 ABD [8-2] 256; Brown v. Public Service Commis sion, [1975] F.C. 345; (1975), 60 D.L.R. (3d) 311; 9 N.R. 493 (C.A.); Canada (Attorney General) v. Jol- limore, A-19-90, F.C.A., Décary J.A., judgment dated 23/11/90, not yet reported.
COUNSEL:
Ben Bierbrier for applicant. Andrew J. Raven for respondents.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Soloway, Wright, Ottawa, for respondents.
The following are the reasons for judgment rendered in English by
MARCEAU J.A.: I agree with Mr. Justice Mac- Guigan that the decision under attack, which has upheld appeals brought by the respondents pursu ant to section 21 of the Public Service Employ ment Act [R.S.C., 1985, c. P-33] (the Act), must be allowed to stand. I have more difficulty than my colleague, however, with the reasoning fol lowed by the Appeal Board to arrive at its conclu sion, which leads me to express my own views of the matter.
Chairperson Ladouceur of the Appeal Board made clear, in her decision, why she thought the Selection Board had erred in ruling that, in order to meet the basic qualification prescribed in the competition poster as "considerable second-level supervisory experience", a candidate had to have two years of such experience within the preceding five years with one of the two years being "con- tinual" experience. In her view, the Selection Board had breached the fundamental rule, set out by this Court in Delanoy v. Public Service Com mission Appeal Board, [1977] 1 F.C. 562, that a rational link had to exist between selection stand ards and the "merit principle" inscribed in section 10 of the Act. With respect, I doubt that the Selection Board's impugned ruling can be criti cized on that basis.
As a first comment, I will express considerable uneasiness with the finding that there was incom patibility between the definition given by the Selection Board to the experience qualification as described in the competition poster and the "merit principle". The members of the Selection Board had given a full and cogent explanation as to why, in their opinion, the period of exposure to manage ment adopted in their definition was needed to prepare adequately for the senior level positions involved. To say that the criteria they adopted were arbitrary and unreasonable is to reject that explanation, and such a position appears to me, I say it with respect, quite unwarranted. The defini tion was incomplete, of course, since it took into account only the time factor, but it was not meant
to be complete and, at that initial stage, it did not need to be. The quality aspect could be considered later. As a mere starting point, I fail to see how it could be seen as offending the merit principle.
But the real objection I have with the thinking of the Appeal Board is more fundamental. As I understand the scheme of the Act, the "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establish ment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Depart ment. The Delanoy decision relied on by the Appeal Board was concerned not with basic qualifications but with selection standards, a point that Ryan J., in delivering the reasons of the Court, took care to point out.'
My reason for agreeing with the conclusion of the Appeal Board is independent of the merit principle. I simply do not think, again in my understanding of the scheme of the Act, that the Public Service Commission or its "agent", the Selection Board, has the authority to tamper with the basic qualifications prescribed by the Depart ment by adding to them or changing part of them in such a way as to limit the factors which could come into play in the judging and ranking of the candidates.
A significant passage of Ryan J.'s comments in this respect is the following (at p. 569):
It is not necessary in this case to consider whether and, if so, to what extent the Public Service Commission can estab lish qualifications for positions in the Public Service. The Commission was purporting to act in reliance on its authority to prescribe selection standards under section 12 of the Public Service Employment Act, and for the reason given in the previous paragraph the requirement in question was not a selection standard. Indeed, it may well be inferred from the reasons for the decision in Bambrough v. Appeal Board established by the Public Service Commission that section 12 confers no authority to establish qualifications for a position as opposed to prescribing standards for selecting a candidate who best meets qualifications otherwise deter mined.
It is true that in Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (C.A.), and again more recently in Re Boychuck and Appeal Board Established by the Public Service Commission et al. (1982), 135 D.L.R. (3d) 385 (F.C.A.), this Court has refused to intervene in cases where elaborations of, or amendments to, basic qualifica tions (that could be seen as new qualifications) had been introduced after selection had begun. But it was found in those cases: first, that the addition al requirements had been made with the active participation of the Department (in both cases by a so-called "screening board" set up apparently to prepare the Selection Board for their delibera tions); second, that, as expressed by Le Dain J. in the Bambrough case (page 117 of the report), "the statement of such qualifications [had afforded] a sound basis for a process of selection according to merit"; and third, that the adding of the further requirements had not had, in practice, the effect of unduly prejudicing the complainants. The situation here is quite different: the decision to restrict the scope of a basic requirement—expressed by the Department in terms left open to practical and relative appreciation—by introducing rigid tem poral criteria was made by the Selection Board itself and alone; the restriction could obviously not afford a sounder basis for selection according to merit, its sole effect being to render more mechanical and more restrictive the screening pro cess; and finally, there were candidates like the respondents who were certainly prejudiced by the newly created "roadblock", since they were automatically eliminated from the competition when their experience could not readily be said not be have been "considerable" enough to be admit ted and, indeed, could very well have been, in fact, more valuable and meritorious than that of admit ted candidates.
These are the reasons why I agree with Mr. Justice MacGuigan that the decision of the Appeal Board here under attack should not be interfered with and the application should therefore be dismissed.
* * *
The following are the reasons for judgment rendered in English by
MAcGuIGAN J.A.: The respondents challenged the selection process for two managerial positions with the Canada Employment and Immigration Commission ("CEIC"), succeeding in their appeals pursuant to section 21 of the Public Ser vice Employment Act ("the Act").
In April 1989 the CEIC had announced by competition poster two competitions for PM-5 level positions which were to be conducted simul taneously. The first competition, No. 89-EIC-CC- QU-IMM-26 was for the position of Manager of a Canada Immigration Centre, the second, No. 89- EIC-CC-QU-IMM-24, was for the position of Assistant Manager. Both closed on May 4, 1989.
In respect of both competitions the poster pre scribed common basic qualifications as follows (Case, at page 27):
Qualifications
Successful completion of secondary school according to provin
cial standards;
Experience in the application of the Immigration Act and
Regulations;
Considerable second level supervisory experience.
Both respondents entered the competition for the first position, and the respondent Blashford was a candidate for the second competition as well. How ever, both were screened out of the competitions and were accordingly not assessed under rated requirements as a result of the Selection Board's conclusion that both had failed to meet the super visory experience requirement as interpreted by the Selection Board. Both were informed that they did not meet the criteria of "Considerable second level supervisory experience" (Case, at pages 42 and 56).
In evidence before the Appeal Board it was established that, following an examination of all the applications, and thus with knowledge as to which candidates had applied, the Selection Board had proceeded to establish criteria as to what constituted an acceptable level of second-level supervisory experience. The test established was that candidates must have possessed two years of second-level supervisory experience within the preceding five years with one of the two years
being "continual" experience. The respondent Blashford had a little less than one year's experi ence as an assistant manager. The respondent Taillefer had eight years of experience but all of it five years before the competitions.
Chairperson Ladouceur of the Appeal Board, in her decision of November 20, 1989, cited the decision of Ryan J. for this Court in Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562, at pages 568-569, 2 where he had set out the principle of the necessity of a rational link between selection standards and the merit princi ple inscribed in section 10 of the Act:
The authority granted to the Commission by section 12 to prescribe selection standards is an authority to prescribe stand ards for the purpose of selecting, from qualified candidates, the person or persons who best merit appointment, having regard to the duties to be performed by the occupant of the position to be filled. The Commission has, of course, a discretion in the prescription of standards, but every standard prescribed must relate to the purpose to be served, otherwise it is not a selection standard within the meaning of the section.
It is really not possible to perceive a rational link between the so called basic requirement involved in this case and selection according to merit of the candidate for appointment best qualified to fill the advertised position. The stipulated require ment of at least one year spent in a candidate's current position, or in a position classified in the same group and at the same level, could be met by service in a position unrelated to the position under competition either in respect of duties to be performed or qualities required. On the other hand, a well qualified candidate who had served for slightly less than a year in a clearly related position would be automatically eliminated. Such a requirement, whatever else it may be, is not a standard related to merit selection. The facts of this case amply illustrate that the basic requirement not only does not serve the purpose of merit selection, but may frustrate it.
The Board Chairperson went on (Case, at pages 136-137):
In the present case I am not at all convinced that there exists what Mr. Justice Ryan called "a rational link" between the
2 The applicant failed to distinguish this case from Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A.), per Thurlow C.J. and Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), per Décary J.A., where what was in issue were requirements set by the Department, not by the Public Service Commission, and from Attorney General of Canada v. Appeal Board established by the Public Service Commission, [ 1982] 1 F.C. 803 (C.A.), per Heald J.A., where the issue related not to selection standards but to the actual process of selection.
basic requirement as defined by the Selection Board and the merit principle which requires that the best qualified person(s) be appointed to the position.
The definition of the basic requirement of "considerable second level supervisory experience" is so protracted as it pertains to the "five year, two year, one year" time frame during which the experience had to have been gained that one is left with the distinct impression that the screening process in this regard resembled more a lottery than an assessment of merit.
No relevance whatsoever was established between the super visory experience requirement as construed by the Selection Board [and] the duties of the position being staffed. Thus a very junior level candidate who had second level supervisory experience in a totally unrelated field could have qualified, according to the Department's witness. However, persons such as the appellants, who had relevant experience to the position, were screened out for the sole reason that they lacked a few months of experience. No consideration was given to the sub stance of their experience, that is to their duties performed, the circumstances under which they were performed (i.e., activities of the Department, etc.). The Selection Board focused only on the time frame and quantum. Such a practice is unfair and flies in the face of merit.
Finally, the Chairperson cited the famous phrase, "Justice should not only be done, but should manifestly and undoubtedly be seen to be done", 3 and continued (Case, at page 138):
Turning to the situation before me, while no evidence was adduced and no attack made on the integrity of the board members, I think that the conduct of some of the board members who had taken cognizance of candidates' names and job applications combined with the fact that the board mem bers knew the candidates was improper and casts sufficient doubt on their impartiality when they established the parame ters for the basic requirement of supervision.
My colleagues take the position that the Delanoy case followed by the Appeal Board is not in point because it concerned selection standards, whereas the guidelines in the case at bar are related not to selection standards but to qualifications. With respect, I find the guidelines here analogous to the selection standards in Delanoy in that they were made by the Public Service Commission through the Selection Board rather than by management. As Jackett C.J. put it in Bauer v. Public Service Appeal Board, [1973] F.C. 626 (C.A.), at page 630, "The employer must be able to define the
3 Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 K.B. 256.
qualifications and duties of a position before he seeks for a person to fill that position" because "a power to do so would seem to be inherent in management." But there is no such inherent power in the Commission: when it creates criteria, wheth er selection standards or guidelines, it must in my view be bound by the "rational link" principle enunciated in Delanoy. As I read section 10 of the Act, every action of the Commission or its dele gates in relation to appointments is governed by the merit principle: "Appointments to or from within the Public Service shall be based on selec tion according to merit, as determined by the Commission ...."
The applicant argued the case rather on the basis that the Appeal Board erred in law (1) in holding that there was no rational link between the Selection Board's definition of considerable second-level supervisory experience and the merit principle, 4 and (2) in attributing to the conduct of the selection members such impropriety as would cast doubt on their impartiality when establishing their selection standards.
Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (C.A.) held that the Public Service Commission, acting through a selection board, can participate in establishing the qualifica tions for a position, and that it may be justified in doing so even after a selection process has begun. Le Dain J. expressed it this way for this Court (at pages 119-120):
Obviously where the change in the qualifications would enlarge the range of potential candidates for a position, the selection process would have to be recommenced to afford an opportu nity for the identification of other candidates. But where, as here, the effect of the change in the qualifications is to narrow the range of potential candidates, there is no adverse effect on the principle of merit, nor is there any prejudice to a candidate
^ In oral argument the applicant also suggested that the Board's decision was perverse under paragraph 28(1)(c) of the Federal Court Act [R.S.C., 1985, c. F-71 but was unable to sustain this position, since there was clearly some evidence on the basis of which the Appeal Board could have found as it did.
who is eliminated from further consideration on the ground that he lacks one of the additional qualifications. The applicant did not have, merely by virtue of identification as a candidate on the basis of the original qualifications, a vested right to be assessed for relative merit in relation to those qualifications. Had the Data Stream search been initiated with the additional qualification of air pollution research as one of the search criteria the applicant might not have emerged at all as a potential candidate for the position. If he had emerged he would still have been subject to elimination by the Screening Board on the ground that he lacked an essential qualification for the position. In my opinion there is nothing in the Act or regulations that prevents the identification of candidates for a position in two stages. The applicant argued that if the qualifi cations for a position could be changed in the course of the selection process, such change could be a device for giving one candidate an unfair advantage over others. There is no sugges tion in this case that the qualifications were changed for such a purpose. The Appeal Board found that the additional qualifica tions were reasonable, having regard to the requirements of the position, and we see no reason to question that opinion. Indeed, it would appear that the additional qualification with respect to air pollution oriented research was little more than an elabora tion of the research requirement suggested by the original statement of qualifications.
It seems clear from this statement that a screening board may, without impropriety, specify broadly stated qualifications by spelling out additional cri teria to be met, provided that an appeal board finds the additional qualifications to be "reason- able", that is, having the rational link to the merit principle required by Delanoy. In Bambrough the Court had no reason to question the Appeal Board's holding.
In Re Boychuck and Appeal Board Established by the Public Service Commission et al. (1982), 135 D.L.R. (3d) 385 (F.C.A.), there was an issue as to screening guidelines establishing a minimum number of direct audit hours and a minimum number of completed cases by way of experience in a competition for a senior business files auditor. In that case the Appeal Board, after citing Delanoy, wrote (cited at page 390):
Since I find the basic requirement for experience as defined by the selection board reasonable in the instant case, given the scope of the audits conducted by a Senior Business Files Auditor, I find that the basic requirement established for this competition to be related to merit selection.
Ryan J. commented (at page 391):
I cannot say that the appeal board erred. I would however, choose to put the matter rather differently: in the words used in Delanoy, it can hardly be said that there is no rational link between the screening guidelines in issue here and merit selec tion, having in mind that the guidelines had to do with experi ence in related work.
Again, the Delanoy test was found to have been met by the Appeal Board. It should also be noted that Ryan J. remarked that "the guidelines had to do with experience in related work."
None of this to my mind raises any problems with the Appeal Board's decision in the case at bar. The error which the Appeal Board found to exist in the Selection Board's procedure was not simply that the latter Board added additional qualifications, but rather that what it had added had the character of arbitrariness. This, it felt, was most clearly seen from the Selection Board's acceptance of "totally unrelated" experience in preference to relevant experience. In so holding, the Appeal Board was in my opinion applying a correct view of the law to the facts of the case at bar as it found them.
Given its emphasis on relevant experience the Appeal Board had no difficulty in distinguishing a previous Board decision in Ahluwalia, 1987 ABD [8-2] 256, in which a minimum of five years' continuous experience had been accepted as a reasonable qualification of extensive experience in contracting and managing complex programs. Chairperson Ladouceur, in quoting from the Board's reasons in Ahluwalia, underlined that the quantum of experience there approved established a threshold of competence in related work.
Moreover, in my opinion the Appeal Board's final comment relating to the doubtful impartiality of the Selection Board was not intended as a separate reason for decision, but rather as an additional indication of the arbitrariness it had already identified.
In my view, therefore, the applicant fails on both arguments, and the application should accordingly be dismissed.
* * *
The following are the reasons for judgment rendered in English by
DÉCARY J.A.: I have had the opportunity to read the reasons of my colleagues Marceau and MacGuigan. I agree with them that this section 28 application should be dismissed. While I adopt the general approach of my collegue Marceau as being in my view more consistent with the scheme of the Public Service Employment Act ("the Act"), I cannot subscribe entirely to his reasons.
The establishment of qualifications for a posi tion in the Public Service has been repeatedly held by this Court to be a function of the department concerned and not a function of the Public Service Commission ("the Commission"). It is also settled jurisprudence that the function of an appeal board set up under the Act "is to enquire not into the qualifications established by the department for a position but into the question whether the merit principle prescribed by s. 10 has been observed in the selection and appointment of a candidate who has the qualifications determined by the depart ment for the position." 5
It logically flows from these principles that a selection board or a screening board set up by the Commission in the process of selecting candidates can no more than the Commission itself or an appeal board inquire into the qualifications estab lished by a department for a position. Two deci sions of this Court are however relied on as author ity for the proposition that the Commission through a screening board or a selection board may participate with a department in establishing the qualifications for a position. They are: Barn- brough v. Public Service Commission, 6 and Re Boychuck and Appeal Board Established by the Public Service Commission et al.'
5 Brown v. Public Service Commission, [ 1975] F.C. 345 (C.A.); Ricketts v. Department of Transport (1983), 52 N.R. 381 (F.C.A), at p. 382, Thurlow C.J.; Canada (Attorney Gen eral) v. Viola, [1991] 1 F.C. 373 (C.A.); and Canada (Attorney General) v. Jollimore, A-19-90 (F.C.A.), Décary J.A., judg ment dated November 23, 1990, not yet reported.
6 [1976] 2 F.C. 109 (C.A.).
(1982), 135 D.L.R. (3d) 385 (F.C.A.).
Bambrough has decided, in my view, a) that the qualifications for a position, while generally estab lished by a department before the selection process has begun, may be validly amended by a depart ment after a selection process has begun provided the change is not a device for giving one candidate an unfair advantage over others and is no more than a reasonable elaboration of a requirement suggested by the original statement of qualifica tion; and b) that the Commission may participate in the making of such an amendment provided the decision-maker continues to be the department. Le Dain J. at pages 117-118, explained as follows the reasons for which the Commission needed to have the power to participate with a department in establishing the qualifications for a position:
The statutory duty of the Commission to appoint qualified persons on the basis of merit to positions within the Public Service must carry with it at least the implied power to participate with the department or other branch of the Public Service concerned in establishing the qualifications for a posi tion. The Commission must have the power to assure that the specified qualifications are those that are called for by the position and that the statement of such qualifications affords a sound basis for a process of selection according to merit. I would infer this power from the Commission's responsibility for appointment under sections 5, 8 and 10 of the Act, rather than from its power, under section 12, to prescribe selection stand ards. [My emphasis.]
With respect to the extent to which the Commis sion may participate in establishing an additional qualification for a position once the selection pro cess has begun, the following statement by Le Dain J. at page 117 is particularly relevant:
It would be possible to take the view, on the agreed statement of facts and the report of the Screening Board, that what happened is that Dr. Ingraham, as the departmental repre sentative and supervisor concerned, established the additional essential qualifications on behalf of the Department in consul tation with L'Esperance, as the responsible staffing officer in the Commission, and that the two of them acting together as the Screening Board applied the additional qualifications to the selection process. But even if it is necessary to treat the formulation of these additional qualifications as the act of the Commission, I do not think it is beyond the implied powers of the Commission to participate to this extent in the elaboration of the qualifications for a position, particularly where, as here, it is done not only with the approval, but the active participa tion of an officer of the department concerned. There is no issue here of the Commission attempting to usurp or override the departmental authority to establish the qualifications for a position. [My emphasis.]
On the facts of the case, the "additional qualifi cations" in Bambrough were established "on behalf of the Department in consultation with" the Commission and it is only to the "extent" of that "consultation" that the Commission has been rec ognized "the implied power to participate with the department ... establishing the qualifications for a position." It would be incorrect to infer from Bambrough that the sole presence of a representa tive of the department concerned on a screening board or on a selection board enables that board to add qualifications to those already established by the department.
Furthermore, as noted by Le Dain at page 120:
There is no suggestion in this case that the qualifications were changed for such a purpose [i.e. to give one candidate an unfair advantage over others]. The Appeal Board found that the additional qualifications were reasonable, having regard to the requirements of the position .... Indeed, it would appear that the additional qualification ... was little more than an elabora tion of the research requirement suggested by the original statement of qualifications.
To the extent, therefore, that the Commission does have the power to "participate" in the establish ment of qualifications once the selection process has begun, Bambrough would be authority for the proposition that the Commission may at the most be involved in a mere reasonable elaboration of the requirements suggested by the original qualifica tions.
In Boychuck, the issue was whether screening guidelines adopted by a screening board in the application of selection standards prescribed by the Commission were contrary to a "basic require ment" stipulated by the Commission within these selection standards. As the question of whether the screening guidelines adopted by the screening board or the selection standards and the basic requirement prescribed by the Commission, amounted to a qualification to be added to those established by the department was not raised, Boychuck can hardly be considered as having any authority with respect to the power of selection boards or screening boards to establish additional qualifications.
In the case at bar, one of the essential qualifica tions established by the Department was "Consid- erable second level supervisory experience." The
evidence was to the effect that when the Selection Board met, it established the level of experience required as follows: two years of second level supervisory experience within the preceding five years with one of the two years being "continual" experience. There is no evidence, here, that the representatives of the Department who sat on the Selection Board were in reality acting on behalf of their department at the time they defined the criteria and it would need strong evidence, in my view, to rebut the presumption that members of a selection board established by the Commission are acting on behalf of the Commission and not on behalf of their own department when they define criteria that amount to additional qualifications. It may be that screening boards such as those in Bambrough and Boychuck can be more easily dissociated from the Commission than selection boards, but as there is no screening board in the present case I need not go further on this point.
The question therefore arises, as to whether the Selection Board, in narrowing as it did the qualifi cation established by the Department, was acting within its or the Commission's jurisdiction? The answer, clearly, is no: the Selection Board had no authority to tamper in such a way with the qualifi cations established by the Department. In intro ducing rigid temporal criteria which were much more than a mere elaboration of the qualifications established by the Department, the Selection Board usurped or overrode the departmental au thority to establish the qualifications for a posi tion. It is even arguable, on the authority of Bam- brough, that the Department itself could not, once the selection process had begun, have initiated these changes to the original qualification as they amount to more than a mere elaboration, but since it has not been suggested to us that the changes were made by the Department rather than by the Selection Board, it is not necessary to consider that argument.
The Appeal Board in allowing the appeal relied particularly on the decision of this Court in Dela- noy v. Public Service Commission Appeal Board.' Delanoy, in my view, has no application in the case
8 [1977] 1 F.C. 562 (C.A.).
at bar. The Court was there dealing not with qualifications established by a department or by a screening or selection board, but with selection standards prescribed by the Commission pursuant to section 12 of the Act. Delanoy is therefore authority for the proposition that selection stand ards prescribed by the Commission must have a rational link with the merit principle, but it is of no use where, as here, selection standards are not in issue. I need not examine whether or not there is a rational link between the guidelines defined by the selection board and the merit principle, for I find that the guidelines in the instant case are related not to selection standards but to qualifications.
The practical difficulty, in this case, arises from the fact that the wording of the qualification in issue—"Considerable second level supervisory experience"—is particularly vague, more so than in cases that were cited to us and from the fact that no selection standards have been referred to. The Commission might well have failed in the exercise of its implied power "to assure that the specified qualifications are those that are called for by the position and that the statement of such qualifications affords a sound basis for a process of selection according to merit", to use the words of Le Dain in Bambrough, or in the exercise of its express power to prescribe selection standards, but should that be the case, the proper remedy would have been for the Commission to ask the Depart ment, before advertising the competition, for a more specific wording or to prescribe selection standards. Once the competition notice was posted, all the Commission could do was to elaborate in the manner I have described earlier on the require ments suggested by the original qualification.
The Appeal Board having reached the right conclusion, but for the wrong reasons, this applica tion should be dismissed.
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