T-1751-91
George Hack (Applicant)
v.
The Deputy Minister of Employment and
Immigration (Respondent)
INDEXED AS: HACK V. CANADA (DEPUTY MINISTER OF
EMPLOYMENT AND IMMIGRATION) (TR)
Trial Division, Joyal J.—Ottawa, August 20 and
November 1, 1991.
Public Service — Termination of employment — Probation
— Employee on eligibility list following competition —
Department asking employee to accept acting position until
indeterminate position available — Employee relocating — In
acting position one year — Appointed to indeterminate posi
tion — Rejected on probation eleven months later — Whether
acting assignment "appointment" within Public Service
Employment Act, s. 28 — Existence of appointment determined
by objective situation, not stated intention of Department
Indeterminate position arising out of original appointment to
acting position — Probationary period running from acting
appointment.
This was a section 18 application for certiorari to quash the
respondent's decision rejecting the applicant employee on pro
bation.
The applicant participated, in early 1989, in a competition
for two senior policy analyst (ES-5) positions in the Labour
Market Policy Analysis Division (LMPAD) of Employment
and Immigration Canada. He was then in an ES-4 position,
having been promoted once since starting with the Department
in 1983. He was found to be qualified, but two candidates
placed ahead of him, so his name was entered on the eligibility
list for similar positions. In April, 1989, the manager who had
chaired the selection board called to say he had an urgent need
for a senior policy analyst, and offered the employee a job at
the ES-5 level. No indeterminate positions were available at
that level, so the employee was appointed to an ES-4 position
and, simultaneously, made an acting ES-5. This was done on
the understanding that the situation would he regularized when
an ES-5 position became available. The applicant's spouse quit
her job in Halifax, they sold their house and moved to Ottawa.
The employee remained in the acting assignment for a year,
during which time the personnel section twice extended the
appointment, with different position numbers. The employee
was unaware of these arrangements. His work went on
unchanged. In June, 1990, an indeterminate position at the
ES-5 level became available, and the applicant was appointed
to it on 28 June, 1990. The letter of appointment recited that
the position was subject to a probationary period. On 18 June,
1991, the Assistant Deputy Minister purported to reject the
employee while on probation.
Held, the application should be allowed.
The question whether an appointment has taken place is
determined by looking at the objective facts. If the acts neces
sary for an appointment are done, the employee cannot be
denied the rights attaching to his position because the Depart
ment states it did not intend that an appointment take place. An
assignment to an acting position is an appointment, while the
person is employed in it, for the purpose of calculating the pro
bationary period. Here, the original appointment on 12 June
1989 triggered the probationary period provided for by section
28 of the Act. The appointment to the indeterminate position
was just the crystallization of the arrangement originally
agreed to.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Public Service Employment Act, R.S.C., 1985, c. P-33, ss.
17, 21, 22, 28.
Public Service Employment Regulations, C.R.C., c. 1337,
ss. 25 (as am. by SOR/8 I -7l6, s. 2; SOR/86-286, s. 1;
SOR/89-443), 28 (as am. by SOR/82-812, s. 6), 31,
Schedule A (as am. by SOR/78-l66, s. I; SOR/79-14,
s. 3; SOR/80-613, ss. 4, 5; SOR/83-354, s. I).
CASES JUDICIALLY CONSIDERED
APPLIED:
Dori v. Canada, [1987] 2 S.C.R. 503; (1987), 45 D.L.R.
(4th) 135; 29 Admin. L.R. 81; 87 CLLC 14,056; 81 N.R.
77; Lucas v. Canada (Public Service Commission Appeal
Board), [1987] 3 F.C. 354; (1987), 40 D.L.R. (4th) 365;
80 N.R. 109 (C.A.).
DISTINGUISHED:
Desrochers v. The Queen, [1976] 2 F.C. 679 (T.D.).
CONSIDERED:
R. v. Gowers, [1980] 2 F.C. 503; (1979), 34 N.R. 337
(C.A.).
REFERRED TO:
Murray v. Government of Canada (1983), 47 N.R. 299
(F.C.A.).
COUNSEL:
Dougald E. Brown for applicant.
Geoffrey S. Lester for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
JOYAL J.: The applicant seeks from this Court a
writ of certiorari pursuant to section 18 of the Fed
eral Court Act, R.S.C., 1985, c. F-7 (as amended)
quashing the decision of the Deputy Minister of
Employment and Immigration to reject the applicant
on probation effective July 19, 1991.
FACTS
The applicant, Mr. Hack, began his employment
with the federal public service in 1983. He was ini
tially appointed to a position with Employment and
Immigration Canada (hereinafter CEIC) in Halifax at
the ES-3 level. In or around 1985, Mr. Hack was
appointed to the ES-4 level. At the end of January or
beginning of February 1989, while Mr. Hack was
employed in Halifax, he participated in an open com
petition for two ES-5 Senior Policy Analyst posi
tions. The positions were in Ottawa with the Labour
Market Policy Analysis Division, Employment and
Immigration Analysis Directorate, Policy and Pro
gram Analysis Branch, Employment and Immigration
Canada (hereinafter LMPAD).
Approximately thirteen applicants participated in
the competition. Of the thirteen or so applicants only
four were found to be qualified. Mr. Hack was of that
group placing third in the competition. The individu
als placing first and second in the competition were
appointed to the positions being staffed. The appli
cant was informed that his name would remain at the
top of the eligibility list for future positions.
Sometime around April of 1989, Mr. Hack was
contacted by the Acting Chief of LMPAD, Mr. Ging
Wong. Mr. Wong had been Chairperson of the Selec-
tion Board in the competition for the Senior Policy
Analyst positions. Mr. Wong told Mr. Hack that he
had been favourably impressed by his qualifications
during the competition and advised, Mr. Hack that
due to the work demands within his Division, he
required another ES-5 Senior Policy Analyst to start
immediately.
Mr. Wong offered Mr. Hack a job as a Senior Pol
icy Analyst. He explained that he was operating
under staffing constraints in that there were no vacant
Senior Policy Analyst positions at the ES-5 level, but
that a number of ES-5 Senior Policy Analyst posi
tions were encumbered by persons off on assignment
who were not expected to return.
Mr. Hack indicated that because of the major
implications that a move to Ottawa would have for
his family he would not be willing to accept either an
appointment at the ES-4 level or an ES-5 term
appointment. Mr. Wong decided that due to the
urgency for an additional Senior Policy Analyst
ES-5, Mr. Hack would be appointed at the ES-5
level. He would be transferred to a vacant ES-4 posi
tion in Ottawa and then immediately thereafter be
appointed at the ES-5 level on an acting basis.
It was clearly understood that Mr. Hack's appoint
ment at the ES-5 level was made on an acting basis
solely as a result of the staffing constraints under
which the Directorate was operating at the time. Mr.
Hack agreed to this arrangement on the understand
ing that by doing so he was assisting the Department,
and on the understanding that his appointment at the
ES-5 level would be regularized as soon as an inde
terminate ES-5 level Senior Policy Analyst position
became unencumbered. On these terms, Mr. Hack
accepted the job as a Senior Policy Analyst ES-5. He
then sold his house in Halifax, his wife resigned from
her employment and the family made the move to
Ottawa.
Mr. Hack was appointed at the ES-4 level effective
June 12, 1989, and was simultaneously appointed to
position number 2430 at the ES-5 level on an acting
basis effective June 12, 1989. Mr. Hack's appoint-
ment at the ES-4 level was confirmed by a Request
on Staffing Transaction (hereinafter a ROST). There
was no ROST completed in relation to Mr. Hack's
appointment at the ES-5 level on an acting basis. His
acting appointment was given effect by means of a
document entitled "Personnel Action Request" (here-
inafter PAR).
Mr. Hack's duties as a Senior Policy Analyst ES-5
included the preparation of briefing notes and minis
terial correspondence, numerical analysis, reprofiling
of data, and the disaggregation and reaggregation of
program information and labour market data.
Mr. Hack's acting appointment was extended on
December 31, 1989 to March 31, 1990. On April 1,
1990, his appointment was further extended to July
27, 1990. Mr. Hack was not aware of these exten
sions to his appointment until he later requested an
opportunity to review his personnel file. PAR's were
used to extend Mr. Hack's acting appointment at the
ES-5 level. He was assigned a different position num
ber on each extension to his acting appointment as a
Senior Policy Analyst at the ES-5 level. Specifically
he filled position numbers 2430, 6581 and 472. All of
the positions which Mr. Hack filled during the period
of his acting appointment were ES-5 positions within
the Department.
In or around February, 1990, Mr. Hack was
advised by Mrs. Norine Smith, Director of the
Employment and Immigration Directorate, that posi
tions and person-years within the Directorate were
being shifted to the Labour Market Studies Division
(hereinafter LMSD) and that he would be transferred.
As a result, Mr. Hack's position was moved from
the LMPAD into LMSD. His immediate supervisor
became the Acting Chief of LMSD. His duties and
responsibilities remained, for all intents and pur
poses, unchanged. In or around June 1990, one of the
Senior Policy Analysts who had been appointed in
the open competition in 1989 left, leaving a vacant
indeterminate Senior Policy Analyst ES-5 position in
the Directorate. On June 28, 1990, Mr. Hack was for
mally appointed on an indeterminate basis at the
ES-5 level. His duties remained unchanged, and he
continued to report to the Acting Chief of LMSD.
This appointment was given effect by means of a
PAR and a ROST. The applicant was notified that his
appointment was now on an indeterminate basis by
letter dated June 28, 1990. The letter also stated that
this position was subject to a probationary period.
The incumbent acknowledged by his signature the
terms and conditions of the appointment.
Less than a year later, namely on June 18, 1991,
the Assistant Deputy Minister, Strategic Policy and
Planning, Employment and Immigration Canada,
purported to reject Mr. Hack on probation from his
ES-5 Senior Policy Analyst position, effective July
19, 1991.
It is from that decision that the applicant seeks
relief from this Court through an order of certiorari.
ISSUES
1. Was Mr. Hack appointed as Senior Policy Analyst
ES-5 on June 12, 1989?
2. If so, when did the probationary period lapse?
3. What is the true construction to be given to the
appointment of June 28, 1990?
4. Did the Assistant Deputy Minister exceed his juris
diction in rejecting Mr. Hack on probation effective
July 19, 1991?
Public Service Employment Act
Pursuant to section 28 of the Act [R.S.C., 1985, c.
P-33], an employee is considered to be on probation
from the date of his appointment until the end of such
period as the Commission may establish for any
employee or class of employees. Section 22 states
that this appointment takes effect on the date speci
fied in the instrument of appointment. Finally section
21 provides as follows:
21. (I) 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, every
unsuccessful candidate, in the case of selection by closed com
petition, or, in the case of selection without competition, every
person whose opportunity for advancement, in the opinion of
the Commission, has been prejudicially affected, may, within
such period as the Commission prescribes, appeal against the
appointment to a board established by the Commission to con
duct an inquiry at which the person appealing and the deputy
head concerned, or their representatives, shall be given an
opportunity to be heard.
It is essential however that the Regulations be con
sidered carefully as I believe that much of the
answers are to be found there. The following provi
sions of the Public Service Employment Regulations,
C.R.C., c. 1337 [s. 25 (as am. by SOR/81-716, s. 2;
SOR/86-286, s. 1; SOR/89-443), 28 (as am. by
SOR/82-812, s. 6)], are relevant to the disposition of
the case:
Acting Appointments
25. (1) Subject to subsection (2), where an employee is
required by the deputy head to perform for a temporary period
the duties of a position having a higher maximum rate of pay
(hereinafter referred to as the "higher position") than the maxi
mum rate of pay for the position held by him, the employee
shall be considered to have been appointed to the higher posi
tion in an acting capacity, and if the higher position is classi
fied in
(a) the occupational category referred to in the Public Ser
vice Staff Relations Act as the operational category and the
temporary period is four months or more,
(b) the occupational category referred to in that Act as the
administrative support category and the temporary period is
three months or more, or
(c) an occupational category other than an occupational cate
gory mentioned in paragraphs (a) and (b) and the temporary
period is two months or more,
the employee shall be deemed, for the purposes of sections 10
and 42, to have been appointed to the higher position without
competition, effective as of the last day of,
(d) in the case mentioned in paragraph (a), the period of four
months,
(e) in the case mentioned in paragraph (b), the period of
three months, and
(f) in the case mentioned in paragraph (c), the period of two
months
from the day on which he commenced to perform the duties of
the higher position.
(2) An appointment to a position in an acting capacity shall
not be made for a period of more than 12 months unless
authorized by the Commission in any case or class of cases.
Probation
28. (1) The probationary period referred to in subsection
28(1) of the Act for an employee who comes within a class or
group of employees mentioned in Column 1 of the schedule is
the period set out opposite that class or group in Column Il of
the schedule.
(2) The deputy head may extend the probationary period of
an employee but the period of extension shall not exceed the
period for that employee determined pursuant to subsection
(1).
(3) Where the probationary period of an employee is
extended, the deputy head shall forthwith advise the employee
and the Commission thereof in writing.
31. Notwithstanding anything in these Regulations, where
an employee is appointed for a specified period of one year or
less,
(a) the probationary period for that employee is the period of
employment; and
(b) the notice period referred to in subsection 28(3) of the
Act applicable in the case of that employee is I day.
In this case the probationary period is twelve
months excluding any periods of leave without pay,
full time language training or leave with pay in
excess of 30 days (see Schedule A to the Public Ser
vice Employment Regulations [as am. by SOR/78-
166, s. 1; SOR/79-14, s. 3; SOR/80-6l3; ss. 4, 5;
SOR/83-354, s. 1]).
APPLICANT' S POSITION
Counsel for the applicant argues that he was
appointed to an ES-5 position as of June 12, 1989.
This was an acting appointment but nevertheless an
appointment within the meaning of the Act. He
alleges that the probationary period pursuant to sec
tion 28 of the Act started to run from the time of that
appointment or more specifically from the date speci
fied in the instrument used to effect the appointment,
which, according to the applicant, was by a PAR
dated June 12, 1989. This acting appointment was
extended on two separate occasions.
In February of 1990, his position was moved to
another division but his duties remained unchanged.
In June of 1990, as a result of an opening to one of
the Senior Policy Analyst positions he was appointed
on an indeterminate basis to the ES-5 level. The
duties remained unchanged. On June 18, 1991 he was
advised that he was rejected on probation effective
July 19, 1991.
His argument is that the decision cannot be upheld
as the one-year probationary period had terminated.
RESPONDENT' S POSITION
The respondent states that the question of whether
or not an appointment was made must be determined
having regard to the intentions of the parties as objec
tively understood by their actions and statements.
The next step in the respondent's argument is to
state that an appointment to an acting position does
not provide the incumbent with a right to be
appointed permanently to that position. According to
the respondent, an acting position does not mature by
operation of the law into a permanent appointment.
The respondent further says that two separate
appointments were made: the first one effective June
12, 1989 and the second one effective June 28, 1990.
This second appointment was also subject to a new
twelve month probationary period.
THE LAW GENERALLY
It has been stated many times that the Public Ser
vice Employment Act does not define the terms
"appointment" or "position" although those terms
figure prominently in many of its provisions. The
Supreme Court of Canada has however, laid down
certain principles which guide the courts' approach
when dealing with these questions. In Dore v.
Canada, [1987] 2 S.C.R. 503, Mr. Justice Le Dain
stated at page 510:
... but, as I said in the Brault appeal, the application of the
merit principle and the right of appeal under s. 21 of the Public
Service Employment Act cannot depend on whether the Depart
ment chooses to regard what is done as the creation of a posi
tion and an appointment to it within the meaning of the Act. It
is what the Department has objectively done as a matter of fact
and not what it may have intended or understood it was doing
as a matter of law ....
This principle was also adopted in Lucas v.
Canada (Public Service Commission Appeal Board),
[1987] 3 F.C. 354 (C.A.). Mr. Justice Heald speaking
for a unanimous Court stated at page 362:
In my view, in the circumstances of this case, the Public Ser
vice Employment Act governs and determines the rights of
management and of this applicant. Pursuant to that Act, while
the Commission makes the appointments to the Public Service,
they are made only at the request of the Deputy Head. They
must also be made by a process of selection according to merit.
This necessarily entails a competition or some other process
designed to establish the merit of candidates. Those principles
apply equally to an acting appointment as to a permanent one.
On this basis, management cannot supersede and subvert the
clear intention of Parliament as expressed in the Act by a dec
laration, as in this case, that it was not "intended" that subject
staffing action be construed as an "appointment".
1 am satisfied that it was never intended by Parliament that a
department of government could, at its will, create and fill
positions on an "assignment" basis, thus eliminating the pro
tection afforded by the various provisions of the Act ....
The respondent argues that the Lucas, Brault and
Doré cases cannot be read as laying down a rule that
whether or not there has been an "appointment" must
as a matter of law be determined irrespective of the
intentions of the parties as objectively understood by
their actions and statements.
The respondent also states that all three of those
cases deal with an appeal pursuant to section 21 of
the Act and that the proposition regarding the
approach to be taken when considering whether or
not an appointment was made is valid only for the
purposes of section 21.
Although the respondent is quite correct in noting
that those three cases were dealing with a section 21
appeal, I do not agree that the approach to he taken
towards an appointment is limited solely to those
cases. I believe that these cases stand for the proposi
tion that when the Court is faced with a question
relating to whether or not an appointment took place
or whether the appointment is of one kind or another
or whether the appointment was on one date or
another, the question of intention is irrelevant.
The Supreme Court has stated that the proper
approach is to look at the objective facts. The actions
taken or statements made by one party or the other
are facts to be considered when trying to determine
the issue, but the purpose of considering them is not
to find out what the parties intended. The Act pro-
vides protection and procedures which cannot hinge
on an intention being established. If the acts neces
sary for there to be an appointment are done, then the
appointee cannot be denied the rights which he or she
has acquired as a result of such an appointment sim
ply because the Department states that it never
intended for an appointment to take place. Similarly,
if the facts do not show that an appointment took
place then the Court cannot usurp the Administra
tion's duties by deciding otherwise on the basis of the
applicant's contention that he or she believed that an
appointment took place. Strictly speaking after look
ing at the facts including what was said and done (if
such be in evidence) it may very well be that the true
intentions of the parties become clear. However, for
the purposes of the issue to be determined, that inten
tion is irrelevant.
ANALYSIS OF THE FACTS
Therefore, I should examine the facts in order to
determine: (1) if an appointment took place on June
12, 1989 and (2) if so, what type of appointment was
made and what were the probationary terms to which
it was subjected? It is worth noting at the outset that
most, if not all of these facts, are undisputed.
The first event which in my opinion is of note is
the open competition held in January or February of
1989 for two ES-5 Senior Policy Analyst positions.
Mr. Hack was considered qualified for the position
hut placed third in the competition. He was told that
his name would remain at the top of the eligibility list
for future positions. The placement of Mr. Hack on
the eligibility list is consistent with subsection 17(1)
of the Act:
17. (I) From among the qualified candidates in a competi
tion the Commission shall select and place the highest ranking
candidates on one or more lists, to be known as eligibility lists,
as the Commission considers necessary to provide for the fill
ing of a vacancy or anticipated vacancies.
I presume that the Commission considered this
placement necessary in order to he able to staff a
position which they anticipated would become
vacant.
A second telling fact is the conversation which
took place between Mr. Hack and Mr. Wong around
April of 1989. Mr. Wong, who was the Chairperson
of the Selection Board, contacted Mr. Hack essen
tially to offer him a job as Senior Policy Analyst. The
reason for this offer was that due to the work
demands within his Division, Mr. Wong required
another ES-5 Senior Policy Analyst to start immedi
ately. During this conversation Mr. Hack was told
that Mr. Wong's Division was operating under staff
ing constraints in that there were no vacant Senior
Policy Analyst positions at the ES-5 level. He was
told that a number of ES-5 Senior Policy Analyst
positions were encumbered by persons on assignment
but that some of those people were not expected to
return. Presumably this meant that some persons
holding positions as ES-5 Senior Policy Analysts
were assigned to other positions and Mr. Wong's
Division did not expect them to return to the ES-5
Senior Policy Analyst position.
In answer to this offer Mr. Hack stated his concern
with the major implications that a move to Ottawa
would have for him and his family and laid down cer
tain conditions which I have already outlined.
It was in order to respond to these conditions that
Mr. Hack was transferred to a vacant ES-4 position in
Ottawa and immediately thereafter appointed at the
ES-5 level on an acting basis. It was clearly under
stood that Mr. Hack's appointment at the ES-5 level
would he made on an acting basis solely as a result of
staffing constraints under which the Directorate was
operating at the time. Once in that position all efforts
would be made to "regularize" the position as inde
terminate as soon as possible. On the basis of this
proposed arrangement Mr. Hack accepted the posi
tion as a Senior Policy Analyst ES-5.
Staffing action was taken effective June 12, 1989
for the ES-4 position and on the same day, Mr. Hack
was appointed to position 2430 at the ES-5 level on
an acting basis, which appointment was created by a
Personnel Action Request (PAR).
FINDINGS OF FACT AND LAW
The respondent alleges that there were two sepa
rate and distinct staffing actions, the first one on June
12, 1989 and the second one on June 28, 1990. The
respondent claims that this second staffing action was
an appointment the effect of which is to set off the
section 28 probationary period. The respondent fur
ther argues that an acting appointment to a position
does not in and of itself confer a vested right to he
appointed permanently to that position. In support of
this argument the respondent relies on three cases
which I will now consider.
In Desrochers v. The Queen, [ l976] 2 F.C. 679
(T.D.), the applicant argued that having occupied a
certain position in an acting capacity for a certain
period he must now be considered a permanent
employee of that position.
The facts of that case are quite different than those
in the present case. There, the plaintiff was a person
nel officer who at one point was asked to fill the tem
porary vacancy created by the departure of the
penitentiary's assistant director. He accepted and was
then appointed in an acting capacity in March 1972.
The plaintiff was reappointed on two occasions such
that he occupied the acting position for approxi
mately two and a half years.
Sometime in 1974 there was an internal reorgani
zation of the Penitentiary Service and the position, to
which the plaintiff had been appointed on an acting
basis, was abolished. A new position requiring differ
ent qualifications was created and an open competi
tion was held in order to fill it. The plaintiff was
invited to apply given his experience. However, the
plaintiff was not selected as his qualifications were
insufficient for this new position. The plaintiff imme
diately appealed arguing that he had occupied the
position in an acting capacity for such a lengthy
period that he was automatically entitled to fill the
position on a permanent basis.
Mr. Justice Marceau rejected the plaintiff's claim
stating, at page 682, that:
Nowhere in the Act is it stated that mere length of tenure can
replace such action by changing a temporary assignment into a
permanent assignment
The facts before me, however, appear to be quite
different. The significant differences are that firstly,
no agreement such as the one concluded by Mr. Hack
and Mr. Wong existed in the Desrochers case. The
acting appointment was not made pending a vacancy
to an indeterminate position. Secondly, the position
held by Desrochers on an acting basis was abolished
and an entirely new position with different require
ments and a need for different qualifications was cre
ated. An open competition was held for this new
position and an appointment on the basis of merit
was ultimately made.
Here, Mr. Hack occupied the position of Senior
Policy Analyst at the ES-5 level on an acting basis
because there were no indeterminate vacancies; as
soon as a vacancy came up Mr. Hack was appointed
thereto. This situation bears little resemblance to the
Desrochers case and I do not believe one can apply
the conclusions of that case directly to the one at bar.
The respondent also refers to R. v. Cowers, [1980]
2 F.C. 503 (C.A.). This case dealt with an entirely
different question of law. The Court, however, did
refer in that case to the nature of an acting appoint
ment. The respondent, Gowers, had been appointed
to a higher position within the Post Office Depart
ment on an acting basis. During this time a closed
competition was held in order to fill a new position.
The requirements for applying were that the applicant
occupy a position in which the maximum rate of pay
was at least $312.03 weekly. The respondent did not
make this much money in his regular position but did
in his acting position. The question was whether the
respondent occupied the acting position such as to
qualify him for the closed competition. The Court of
Appeal ruled that the respondent was entitled to be
considered in the competition as he was deemed to
have occupied the position at the time the competi-
tion was held. In speaking of section 27 of the Regu
lations (which is very similar to today's section 25)
Urie J.A. stated at pages 508-509:
It provides only that "the employee shall be considered to have
been appointed to the higher position ... " .... As a result, the
employee is entitled to enjoy the benefits accruing through his
deemed appointment to the acting position as though he were
formally appointed to it, for the duration of such employ
ment .... One of the benefits, of course, is entitlement to par
ticipate in competitions for which his temporary salary makes
him eligible.
In his reasons Kelly D.J. stated the following at
page 510:
Normally a position in the Public Service is filled by the
Commission making an appointment pursuant to section 10 of
the Act. A person so appointed, undoubtedly occupies or is
employed in that position; in fact a person so appointed has the
security of tenure.
In contrast to this procedure, when a person appointed to a
particular position is absent, in order that the work of the
absent employee may be performed and continuity of the work
of the Public Service maintained, through power conferred on
the deputy head by the Regulations enacted by the Commis
sion and without any confirming action by the Commission, or
the conduct of a competition the deputy head may require an
employee (who has already been regularly appointed to a
lower position) to perform, for a temporary period the duties of
the higher position; the employee during the time he is per
forming the duties of the higher position is assured of the
receipt of remuneration appropriate to the higher position.
Such an employee does not have tenure in the higher position
and may be returned to the position to which he was appointed
when the deputy head so requires. The employee so required to
perform the duties of the higher position does not cease to be
an employee of the Public Service, that status flowing from an
appointment made by the Commission.
This case stands for the proposition that section 27
of the Regulations (now section 25) is to be inter
preted as saying that while someone is in a position
on an acting basis he or she is to be considered as
appointed to that position only so long as he or she is
employed in that position. This is the reasoning
which was applied in the Murray v. Government of
Canada (1983), 47 N.R. 299 (F.C.A.) at pages 307-
308, per Heald J.A.
For the applicant, the Court was referred to a case
where it was found that a person appointed to a
higher position on an acting basis had acquired tenure
in that position. In Lucas v. Canada (Public Service
Commission Appeal Board), the Court was primarily
concerned with the interpretation of section 21 of the
Act; however, it did pronounce itself on the incidence
of an acting appointment. In that case, while the
incumbent of the Collection Enforcement Clerk posi
tion was on a training program, the applicant was
requested and agreed to perform the duties of the
position, for which she was entitled to receive acting
pay. A position was created for acting pay purposes.
The Department regarded the staffing action as an
"assignment" and not an "appointment" so that sec
tion 21 did not apply. The Board agreed with this
conclusion and further stated that the "assignee" did
not and could not have acquired any tenure in that
position.
A unanimous Court of Appeal disagreed. It con
cluded that an assignment to a position and an
appointment to a position were exactly the same act
and therefore section 21 applied. As for the status of
the employee appointed in the acting position, Heald
J.A. on behalf of the Court stated at page 363:
I think the Board was also in error in concluding that since
Ms. Morrison's permanent position as SCY-2 was her "tenure
determining position", she could not be said to have acquired
tenure in the CR-4 position which she continues to hold. I
agree with counsel for the applicant that when she agreed to
and commenced to carry out the duties of a Collections
Enforcement Clerk, she clearly acquired tenure in the sense
that she became entitled to a clerk's rate of pay as well as to
carry out the duties of a clerk. I agree with his submission that:
In a very meaningful sense, she acquired for the one-year
period in question, tenure as a clerk and lost her tenure as
Secretary.
I agree with the respondent that an acting appoint
ment does not in and of itself confer a vested right to
be appointed permanently to that position. Otherwise
the entire purpose of the provision allowing for act
ing appointments would be defeated. Again, the
administration must have some flexibility to effect
changes for the proper running of its operations. Vari
ous provisions provide for such flexibility and sec-
tion 25 of the Regulations is one of them. Therefore,
acting appointments do not necessarily mature by
operation of the law into permanent appointments.
Yet, they appear to do so when it comes to section 21
appeals and when other consequences are alleged to
flow from acting appointments.
CONCLUSIONS
I believe nevertheless that in the case before me,
Mr. Hack acquired, in a very meaningful sense, ten
ure as a Senior Policy Analyst at the ES-5 level. This
was what was agreed upon. The time spent in acting
positions was due solely to the fact that no indetermi
nate position was available and all of the evidence
suggests that Mr. Hack would be given the first avail
able indeterminate position. Having already reached
the top of the eligibility list for that particular ES-5
position, a formal appointment, when a position
became available or vacant, was but a crystallization
of what in fact had been triggered on June 12, 1989. I
should therefore conclude that the original acting
appointment on June 12, 1989, was an appointment
the effect of which was to trigger the section 28 pro
bationary period. A finding of this kind is not incon
sistent with the provisions of sections 25 and 28 of
the Regulations dealing with acting appointments.
I should also find that the extension given to Mr.
Hack's term appointments are not new appointments,
the effect of which would be to interrupt repeatedly
the period of probation. Position numbers might have
changed from June 12, 1989, to June 28, 1990, but
these positions were all quite similar and were meant
to accommodate the situation more than anything
else. To find otherwise would impose form over
function.
In my view, tenure as a Senior Policy Analyst at
the ES-5 level had been acquired. The staffing action
of June 28, 1990 should therefore not be considered
an appointment within the meaning of section 28.
Accordingly, it was not open to the respondent to
reject the applicant on probation as the probationary
period had already lapsed. I am therefore of the view
that the applicant's motion should be granted, with
costs.
I would invite counsel for the parties to draft an
appropriate order and submit it to me for endorse
ment. In the meantime I remain seized of the case.
Concurrent with these reasons are reasons deliv
ered in case T-2060-91 where, in similar but not
identical circumstances, I have reached an opposite
conclusion. In both cases, counsel for the parties
were the same and they will appreciate, though not
necessarily agree with, the different reasonings I have
expressed.
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