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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