Date: 20010608
Docket: T-1608-99
Neutral Citation: 2001 FCT 633
BETWEEN:
MICHAEL MAASSEN , MARGE NICHOLS,
ARLENE M. RODE and ELAINE WASS
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA,
EDIE K. PREUGSCHAT, FRANK J. RINK
Respondents
REASONS FOR ORDER
McKEOWN J.:
[1] The Applicants seek judicial review of the Public Service Appeal Board (the Appeal Board) decision (99-MOT-00195) dated August 4, 1999.
Issues
[2] The issue is whether the Appeal Board erred in stating that the selection process at issue constitutes an entirely new process, and not a corrective measure of the first selection process, and whether the Public Service Commission (the Commission) had authority to conduct a new process.
Facts
[3] The Respondent, The Attorney General of Canada, moved to amend the style of cause in this matter so as to show the two successful candidates, Edie K. Preugschat and Frank J. Rink, as Respondents.
[4] The Applicants did not object. Ms Preugschat and Mr. Rink had indicated to counsel for the Respondent that they did not wish to participate in the judicial review. I granted the motion to amend the style of cause.
[5] Transport Canada initiated a closed departmental competition for the position of Regional Director, Human Resources (PE-05) in 1997. The appointment of the successful candidate was successfully appealed by the Applicant, Mr. Maassen. The Appeal Board held that the Selection Board had erred in:
(a) applying an overly strict definition of the screening criterion of "significant experience in supervision";
(b) assessing the experience of the successful candidate, Edie Preugschat, and
(c) considering additional information submitted by the successful candidates and two other candidates concerning their supervisory experience after they had been screened out of the competition without affording other potential candidates opportunity to submit further information.
[6] The Appeal Board Chairperson's decision also stated that, "I am of the opinion that a completely new selection process should be completed using a different selection board".
[7] The Commission revoked the appointment of Edie Preugschat pursuant to subsection 21(2) of the Public Service Employment Act, R.S.C.1985, c. P-33 (the "PSEA") and re-appointed her to her former position. The Commission then directed Transport Canada to conduct a new competition by way of a letter dated May 1, 1998 from the A/Regional Staffing Consultant, Public Service Commission to the A/ Manager, Human Resources Office, Transport Canada. It stated, inter alia,
"... this will confirm that because of the flaws identified in the above-mentioned staffing action, this competition must be conducted all over again from the beginning.
....
The Appeal Board Chairperson has allowed this decision based on a number of allegations, some of which were conceded by the department. As indicated earlier, a new selection process must take place which will include a thorough review of the Statement of Qualifications (SOQ), necessary amendments to reflect the qualifications to be assessed and re-posting of the position."
The letter concluded, "I feel it is important to reiterate at this point that this selection process is a new process, not a corrective measure. As a new selection process it has no links to the previous one, generating its own set of rights."
[8] Transport Canada then held a new competition based on a new set of experience, qualifications and a new selection board, save for one member. Two candidates were placed on the eligibility list, the Respondents Ms. Preugschat and Mr. Rink.
[9] The Applicants' appeal against the second selection for appointments was dismissed by the Appeal Board on August 4, 1999.
Analysis
[10] The Appeal Board first looked at whether this appeal against appointment was made as a result of measures taken by the Commission under subsection 21(3) the PSEA to remedy the defects found by the first Appeal Board. The Appeal Board found that it was not, based on the statement made in the letter from the Commission to Transport Canada dated May 1, 1998 wherein it was stated, "this selection process is a new process, not a corrective measure". The Appeal Board found that this appeal was taken under subsection 21(1) of the Act and was not subject to the provisions of subsection 21(4).
[11] For convenience, I will set out section 21 of the PSEA:
(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
[12] The Appeal Board then quoted from an appeal board decision in Peet (98-RSN-01049):
It is clear from subsection 21(2) of the Public Service Employment Act that the Public Service Commission has two options, when it receives an Appeal Board decision in which an appeal is allowed. The Commission can either exercise its authority under paragraphs (a) or (b) of that subsection or its authority under subsection 21(3) of the Act.
The Appeal Board then found that the Commission expressly declined to exercise its authority under subsection 21(3) which is a permissive section. I agree that subsection 21(3) is a discretionary authority. In my view the Commission is required to revoke the successful candidate's appointment on a successful appeal but is not required to take remedial action. As such, the Commission can conduct an entirely new process of selection and the appeals are not governed by the provisions of subsection 21(4). The Appeal Board recognised this and found that they had no jurisdiction to deal further with the first selection process.
[13] The Applicants submitted that notwithstanding the letter's closing statement that the second competition constituted a new process, and not a corrective measure, the substantive content of the Commission's May 1, 1998 letter called for the measures taken by the Commission, and that these measures were corrective in nature. The Applicants alleged that every direction in the letter can be attributed to the defects identified in the first Appeal Board decision. The Applicants further alleged that even the Commission's direction to develop a new statement of qualifications is evidence of a misguided effort to correct the defects of the original competition.
[14] The Appeal Board thus reviewed the letter in detail and stated at page 13:
the mention in the letter of matters such as the composition of the Selection Board and amendments relating to qualifications, which could in another context have been measures taken under subsection 21(3), is insufficient to override the express statement in the letter that they are not such measures".
In my view, this is a finding of fact to which I should give some deference. The standard of review of Appeal Board decision is correctness with respect to issues of law such as interpretation of PSEA. See:Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (F.C.A.). However, findings of fact made by appeal boards are entitled to a higher degree of deference, except where such findings are made without regard to the evidence before the Appeal Board. See: Canada (Attorney General) v. Rogerville, (1996) 117 F.T.R. 53 (T.D.)
[15] The Appeal Board then goes on to state:
whether or not it is proper for the Public Service Commission to raise such matters with the department, in connection with a new competition following the revocation of an appointment under subsection 21(2), is not for me to say. The Public Service Commission has overall responsibility for staffing in the Public Service, as set out in paragraph 5(a) of the Act:
5. The Commission shall
(a) appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of this Act;
and in section 8:
8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
The authority to hold competitions can be delegated to departments under subsection 6(1):
6. (1) The Commission may authorize a deputy head to exercise and perform, in such manner and subject to such terms and conditions as the Commission directs, any of the powers, functions and duties of the Commission under this Act, other than the powers, functions and duties of the Commission under sections 7.1, 21, 34, 34.4 and 34.5.
There was no evidence at the hearing to establish that the exclusive authority granted to the Public Service Commission by Parliament was so completely and irrevocably delegated to the department that it could not provide direction except under subsection 21(3). It may well be that the Commissioner has retained sufficient authority to provide the direction which it gave in the letter. In any event, if the Public Service Commission exceeds its authority, the remedy does not necessarily lie with an appeal board, which is established for a specific purpose. My role is to determine if the results of the competition represent a selection according to merit.
[16] The Applicants' position is that subsection 21(3) demands that the Commission take corrective measures once it has revoked an appointment that has been successfully appealed to the Appeal Board. The Applicants rely on a previous Appeal Board decision, Lawlor (98-NAR-01774), as meaning that the Commission was required to take corrective measures in accordance with the Appeal Board decision. However, in my view subsection 21(3) simply states that the Commission is empowered to remedy a defect determined by the Appeal Board, but does not require the Commission to do so. As stated earlier, subsection 21(2) and 21(3), the only action the Commission is required to take upon successful appeal against appointment is to revoke such appointment.
[17] In my view, the Commission had the authority to direct that a completely new selection process be conducted pursuant to the sections of the PSEA set out in paragraph 15 above and section 10 of the PSEA which states:
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Accordingly, then, the appeal by the Applicants is made under subsection 21(1.1) of the PSEA. The only arguments open to them is that the Commission did not conduct the competition in accordance with merit principle. The Appeal Board did then proceed at pages 14 to 18 with the merits of the case and the findings are correct in my view.
[18] This case has raised a new point in that the question of the authority of the Commission to direct a new competition when the Commission declines to direct certain corrective measures under subsection 21(3) but in the new process includes all the suggested corrective measures together with a couple of minor additions. In my view the Commission has the authority for the foregoing reasons. The application for judicial review is dismissed. There shall be no costs.
(Sgd.) "William P. McKeown"
Judge
Vancouver, British Columbia
8 June 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1608-99
STYLE OF CAUSE: Michael Maassen et al. v. The Attorney General of Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 31, 2000
REASONS FOR ORDER
OF THE COURT BY: McKeown J.
DATED: June 8, 2001
APPEARANCES:
Michael Maassen APPLICANTS
Elaine Wass
Marge Nichols
Lysanne Lafond FOR RESPONDENT
SOLICITORS OF RECORD:
- FOR APPLICANTS
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice