Date: 20040519
Docket: T-896-02
Citation: 2004 FC 725
BETWEEN:
DAVID J. BAUR, PETER R. MACDONALD
AND FREEMAN GLEN STEVENS
Applicants
- and -
ATTORNEY GENERAL OF CANADA, SCOTT BURGWIN,
RANDALL BRUSHETT, TIMOTHY FULTON, JOHN HINES, ALAN JOHNSON,
DAVID MORSE, BYRON RANDALL, RODNEY STROWBRIDGE,
DANIEL THOMPSON, MICHAEL WILLIS, DERRICK COOLEN, RICHARD COOPER,
RICHARD COTIE, FERGUS FRANCEY, ROBERT GARBER, HAROLD RINK, WILLIAM SARTY, KENNETH BROWN, GUISEPPE CIMELLO,
BYRON GIBBONS, ROY LOCKYER, ANNE MILLER, CRAIG MILLER,
GARY SAUNDERS, GLEN THOMPSON, RICHARD VAN DER BAAREN,
PAUL BRAGG, RONALD COLLIER, ROBERT GRAY, DANIEL HORNIK,
JOHN JENNER, SHELDON MACDONALD, CLAUDE WARREN,
RONALD DOUCETTE AND SCOTT MCADAM
Respondents
LEMIEUX J.:
[1] The issue in this judicial review proceeding under section 18.1 of the Federal Court Act, is whether an Appeal Board (the "tribunal") established under the Public Service Employment Act (the "Act"), erred when by decision dated May 8, 2002, it dismissed the applicants' appeals for lack of jurisdiction ruling the staffing action complained of, taken without competition, did not amount to an "appointment", a pre-condition to its jurisdiction to conduct an inquiry or an appeal under subsection 21(1) of the Act. Section 10, 11 and 21 of the Act read:
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Appointments to be based on merit 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. 10(2) Idem (2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons. R.S., 1985, c. P-33, s. 10; 1992, c. 54, s. 10. 11 Appointments to be from within Public Service 11. Appointments shall be made from within the Public Service except where, in the opinion of the Commission, it is not in the best interests of the Public Service to do so. R.S., c. P-32, s. 11. 21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate 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. Idem 21(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. 21(2) Duty of Commission when notified of decision (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. [emphasis mine]
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Nominations au mérite 10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique. 10(2) Idem (2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats. L.R. (1985), ch. P-33, art. 10; 1992, ch. 54, art. 10.
11 Nominations internes 11. Les postes sont pourvus par nomination interne sauf si la Commission en juge autrement dans l'intérêt de la fonction publique. S.R., ch. P-32, art. 11.
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
21(1.1) Idem (1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
21(2) Mesures (2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_: a) si la nomination a eu lieu, la confirmer ou la révoquer; b) si la nomination n'a pas eu lieu, y procéder ou non.
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[2] The applicants argue, in order to adhere to the merit principle, competitions must be held when, in the circumstances of this case, indeterminate seasonal positions are converted into indeterminate full-time positions. The Attorney General for Canada supports the tribunal's view that no appointments were made as no new positions were created; what occurred was a mere change in working hours of the seasonal employees, a matter which fell under the Financial Administration Act ("FAA") within the management powers of Treasury Board over hours of work and conditions of employment.
BACKGROUND AND FACTS
[3] The material facts do not appear to be in dispute.
[4] Following a program review conducted in early 1996 in the context of its integration with Fisheries and Oceans Canada ("DFO"), the Canadian Coast Guard ("CCG") was facing a reduction involving both its large and small vessel fleets which would have a significant impact on its employees. As a result, the CCG examined different crewing structures and methods of operation to deliver its programs.
[5] In a memo dated August 7, 1996, (applicants' record, volume 1, page 103) the Regional Director for the Canadian Coast Guards' Maritime Region wrote:
The fleet structure will consist of a core full-time indeterminate component and a seasonal component. Seasonal employment will provide flexibility within the fleet to manage our workforce within the funding levels provided and allow the operation to expand or reduce as required. Seasonal positions will be staffed by internal competitions or on a voluntary basis. Vacant full-time positions will be staffed from the seasonal component, at the same group and level. Every opportunity will be made to extend seasonal employment beyond the anticipated nine month season. [emphasis mine]
[6] It was decided 166 full-time indeterminate positions would be changed to indeterminate seasonal positions and treated as a workforce adjustment situation based on the discontinuance of the year-round function.
[7] All employees of the CCG were canvassed on their career interests and options. They were asked to identify career options by order of priority including full-time employment, seasonal employment, incentive package, leave with income average, retraining, etc. All classification levels in the CCG were affected including ships' officers ("SO") and ship's crew (SC). Competitions were held for the indeterminate seasonal positions.
[8] All three applicants in these proceedings competed for various seasonal positions and were successful; however, after reviewing the matter, they did not accept the offers of seasonal employment as they were unwilling to give up their existing full-time positions, essentially for financial reasons.
[9] It is acknowledged by the CCG (applicants' record, volume 1, page 52) in respect of the competitions held for the seasonal positions:
. . . it is noteworthy that many full-time individuals did not compete for fear of being laid off for a few months each year. This was a logical concern given the definition of seasonality. [emphasis mine]
[10] It is also acknowledged by the CCG (also at page 52):
Of those who chose to compete, many were successful in acquiring positions a level or two higher than their previous full-time level. For example an MAO-04 full time employee became an MAO-06 seasonal employee. [emphasis mine]
[11] In the last half of 1997, offers of seasonal employment were made by DFO to successful candidates. As noted, none of the applicants accepted these offers.
[12] The applicants' record (page 78) indicates the new seasonal employees were sent out seasonal employment forms indicating the dates of their seasonal employment. The employment period was from April 1 to December 31. However, the covering memorandum contained a note which read:
Please note: Depending on operational requirements and leave credits, this Seasonal Employment period may be extended. You will be notified of any extension prior to the end date, as indicated on the attached form. [emphasis mine]
[13] In the very first twelve months of seasonal employment, the applicants' record shows employment extensions were granted in December to cover the months of January, February and March of the next year. Further extensions were granted in all subsequent twelve month periods with the result that, in effect, the seasonal ship's officers and crews worked full-time continuously.
[14] In January 2001, the CCG developed a proposal whereby all seasonal indeterminate employees assigned to the Large Fleet would be converted into full-time indeterminate employees. The following rationale was given (applicants' record, page 53):
• With 10-2-1, all Large Fleet employees, including the seasonals, are required to work full-time. Conversion to full-time legitimizes their status to meet operational requirements. The demand for full-time employees will continue as we comply with our 10-2-1 operational requirements.
• In summary, although true seasonality does not exist in Large Fleet, there remain 77 employees who bear the label of "seasonal".
[15] The CCG recognized the proposal might not be well received in some quarters. The applicants' record, page 53, indicates:
• Individuals who in the past chose not to be part of the seasonal competitions and subsequently missed an opportunity for promotion may be upset. It was, however, their choice. In light of anticipated objections this subject has been discussed at the fleet UMC meetings.... A representative from PSAC had some objections and requested clarification from the Public Service Commission. The local PSC office referred the matter to Ottawa and we now have clear direction that we can proceed. HR has assured us that no staffing action is required because the change relates to the terms and conditions of employment. In the event that some seasonal employees would prefer to be assigned to a seasonal vessel, arrangements could be made to move them to Small Fleet. [emphasis mine]
[16] The recommendation was accepted and on November 16, 2001, the Superintendent, CCG, Maritimes, wrote to each seasonal indeterminate SO and SC informing them DFO intended to do the conversion offering each individual "the opportunity to convert your employment status from « indeterminate seasonal » to « indeterminate full-time » . The offer said if accepted "your position will become an indeterminate full-time position and you will perform your duties on a 12-month basis, effective January 1, 2002" (applicants' record, page 63).
[17] The conversion took place without opening up the indeterminate full-time positions to competition and this is what all three applicants objected to.
[18] The applicant David Baur holds a substantive position as SC-ERD-05 (engineering). He is appealing the conversion of a position from indeterminate seasonal to indeterminate full-time at the higher level SO-MAO-03.
[19] The applicant Peter MacDonald has a substantive position at level SC-DED-04 (deck mate) and is appealing the conversion of a position from indeterminate seasonal to indeterminate full-time at the higher level SC-DE-05.
[20] The applicant Freeman Stevens has a substantive position SC-ERD-03 and is appealing the conversion of a position from indeterminate seasonal to indeterminate full-time at the higher level of SO-MAO-03.
[21] In his request to the Commission for an investigation or inquiry, David Baur wrote (applicants' record, page 186):
Five years ago, the Department of Fisheries and Oceans posted several positions within the fleet, one of which I applied for (MAO-03). This position was at a higher classification level than my substantive position, which would result in a promotion.
These positions were classified as seasonal. This was in line with new departmental direction to convert positions to seasonal appointments. In order to accept one of these positions, I would have to relinquish my indeterminate status for seasonal (9 months).
The seasonal positions that were staffed from this competition have been continuously employed for 12 months a year with no breaks in service or layoffs. In effect, these seasonal positions were treated as straight promotions. Had I been aware of this, I would have accepted the offer that I received.
As of January 1st 2002, employees who accepted these seasonal positions are being converted to indeterminate status without competition or any rights of recourse. I feel that a competition for seasonal employment should be just that. To staff indeterminate positions, the department should hold a separate competition. This way all employees are aware of what they are applying for. [emphasis mine]
[22] In his request to the Commission for investigation, Peter R. MacDonald wrote:
I am an employee of the Canadian Coast Guard of 24 years on various buoy tender ships, and I have been acting winchman and bosun on various ships since 1984.
I have set a goal to hold a position of SC-DED-05 over the year. I now hold a position of SC-DED-04 in a competition in 1994. I applied for a seasonal competition of bosun and was offered a seasonal position for 9 months work a year. As a level 4 to a level 5 there was a 30 ¢ difference an hour.
I felt it wouldn't be worth it to give up my full time job for the salary difference. As of some of SC-DED-02 that took the job, they signed away their full time jobs to work seasonal, as the salary difference between a level 2 and a level 5 is well over $1.00 an hour.
I feel that the seasonal workers that got a permanent job working from 9 months to 12 months should have to write a competition for their full time job. (applicants' record, page 145). [emphasis mine]
[23] Finally, the following is what Freeman Stevens wrote in his request to the Commission for investigation (applicants' record, page 174):
I file this appeal of unfair labour practices against DFO . . . and the appointments of seasonal employees into 12 month indeterminate positions as Engineering officers level SO-MAO-03. . . .
In 1996 I applied for and wrote a competition for SO-MAO-03 . . . . At the time if you did not write this competition you would not be considered for any acting assignments that came up within the next year.
I wrote the competition and was a successful candidate. I was offered a seasonal position . . . . After completing some research on the seasonal positions I found that there were no safeguards in place to protect the length of your season. My letter of offer was a 9 month season for 1 year, but there were no guarantees of your season for the following year. I was also told that this offer was net for 9 months work but for 9 months pay which included your annual leave and any other monies incurred over the 9 months. Checking with unemployment and Revenue Canada I was told I could draw UI benefits after nine months but any money I earned as income over . . . would be clawed back by Revenue Canada at the end of the year, thereby putting a salary cap on myself. [emphasis mine]
THE TRIBUNAL'S DECISION
[24] The test which the tribunal adopted to determine whether a staffing situation constituted an appointment for the purposes of subsections 21(1) and 21(1.1) of the Act, is the one Justice Dawson set out in Abercrombie v. Canada (Attorney General) (2000), 185 F.T.R. 300:
¶ 15 A number of cases have considered the question of how to distinguish an "assignment" from an "appointment" for the purposes of the appeal process under the PSEA and the PSER. The leading cases are Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, Doré v. Canada, 1987] 2 S.C.R. 503 and Maslanko v. Canada (Attorney General), supra.
¶ 16 These cases establish that the Appeal Board should have applied the following legal test to determine whether there was an appointment: (i) was the assignment of Ms. Wipp of such "significant and indefinite duration" to be presumed to place Ms. Wipp at a "distinct advantage" in any subsequent selection process?; (ii) was there such a significant or substantial change in functions requiring "additional or special qualifications" so that the "assignment" was tantamount to a new position?; and (iii) was the staffing action in fact an attempt by the Department to avoid observance of the merit principle? [emphasis mine]
[25] In the opinion of the tribunal, none of the three categories identified by Justice Dawson fit the facts of a staffing conversion from "seasonal" to "indeterminate" in the circumstances at hand.
[26] The tribunal then noted (applicants' record, volume 1, page 42) while the term "appointment" is not defined under the Act, there were "contextual reasons for believing that an appointment within the Public Service revolves around the notion of « promotion » in the sense that staffing actions which are subject to appeal under section 21 of the Act, are normally characterized, in part, by whether they constitute promotions". The tribunal also stressed under the Public Service Employment Regulations, (the "Regulations") "promotion is premised on « rate of pay » and not on « absolute pay » based on the number of hours worked in the course of a year as one might loosely characterize the difference between seasonal and full-time employment".
[27] The tribunal wrote the following at page 43 of the applicants' record:
A legislative example involving a promotion is an "acting appointment" under section 1 of the Regulations which is defined as meaning "... when an employee temporarily performs the duties of another position, if the performance of those duties would have constituted a promotion had the employee been appointed to the position". Acting appointments so defined are subject to appeal under section 21 except for the initial four months of an acting assignment pursuant to section 7 of the Act. Assignments not involving promotions can be appointments only if they fall into those categories identified in Abercrombie v. Attorney General of Canada above. [emphasis mine]
[28] The tribunal explored various other staffing categories in the federal Public Service such as transfers. The tribunal wrote the following at page 43 of the applicants' record:
Transfers in the form of deployments from one position to another within the Public Service also do not involve appointments. Subsection 2(1) of the Act defines deployment, as follows: "deployment" means the transfer of an employee from one position to another. Deputy heads of departments, not the Public Service Commission, have the exclusive right and authority to make deployments to or within the department (subsection 34.1 of the Public Service Employment Act) and deployments are to be made in such a manner as Treasury Board may direct (subsection 34.2(1) of the Act). The Act also provides, in effect, that deployments cannot encroach on the jurisdiction of the Public Service Commission by reason of subsection 34.2(2) which reads: "No employee shall be deployed in a manner that results in a promotion or a change in the tenure of office [emphasis by tribunal] of that employee" [other emphasis mine].
[29] The tribunal was confronted with a previous (1988) Appeal Board decision by Chairwoman Anna Ker in Finch et. al., 87-21-PEN-13J, who held that a conversion from indeterminate part-time correctional services positions to indeterminate full-time correctional positions constituted an appointment giving a right of appeal under section 21. I quote from Chairwoman Ker's decision in Finch where she reasoned:
I accept that the functions performed by Mr. Harrison prior to being converted to a full-time employee were not so significantly and substantially different from the functions he performed as a part-time employee as to call for additional or special qualifications requiring evaluation. I am, however, of the opinion that significant and substantial benefits do accrue to Mr. Harrison by reason of the conversion and that these benefits bring the matter within the ambit of the reasoning of the Supreme Court of Canada in the Brault and Dubois and Doré decisions. The matter of salary is significant. Every employee in the Public Service is concerned with salary, and Mr. Harrison now had the right to be paid for 37.5 hours of work per week rather than for 16 hours of work per week; the rate of pay to which he is entitled is also higher, since as a full-time Correctional Officer, he is entitled to incremental increases denied part-time Officers. In addition, Mr. Harrison's fringe benefits are substantially increased, since his annual leave, sick leave, family leave etc., to say nothing of pension benefits, are no longer pro-rated on the basis of a 16 hours week. These are matters of fact, and, on this basis, I am led to conclude that the conversion of Mr. Harrison from part-time to full-time employment constitutes an appointment within section 21 of the Public Service Employment Act.
In reaching this conclusion, I note that the term "appointment" is defined neither in the Public Service Employment Act nor in the Public Service Employment Regulations. I note also that both the Federal Court of Appeal and the Supreme Court of Canada have, in determining whether selections are appointments which are appealable under section 21 of the Public Service Employment Act, relied on a common bond to include as appointments such selections as transfers (Wilkinson), classification (Brault and Dubois) and acting assignments of a significant and indefinite duration (Doré). This bond is adherence to the merit principle. In the words of Mr. Justice Pratte in Attorney General of Canada v. Greaves, [1982] 1 F.C. 806, at 810:
The requirements of the merit principle are, in my view, always the same. They do not vary with the method of selection chosen. That principle requires that the selection be made "according to merit", which means, "that the best persons possible will be found for the various positions in the Public Service.
Against this background, and on the basis of the facts before me, I find that the conversion of Mr. Harrison is an appointment within section 21 of the Public Service Employment Act. [emphasis mine]
[30] The tribunal distinguished the Finch decision by stating the following:
Contrary to the findings of the chairperson in Finch et al. ..., the financial benefits of conversion from indeterminate seasonal ("part-time" in the circumstances of Finch) to indeterminate seasonal [sic] do not fall within the "ambit" of the Supreme Court's reasoning in Brault and Dubois and in Doré or the broader interpretation of the legal test as outlined in Abercrombie, above. The Finch appeal board decision represents in my view a departure from the three circumstances which the Courts have held amounted to appointments under the Public Service Employment Act. In fairness, that appeal board was not presented with any argument or evidence regarding the competing authority of Treasury Board in relation to terms and conditions of employment. [emphasis mine]
[31] It is at this point in its reasons the tribunal focussed on the jurisdiction of Treasury Board when it stated:
Evidence does exist for the department's view that the conversions in dispute are matters concerning terms and conditions of employment and, as such, come within the sole jurisdiction of Treasury Board.
[32] The tribunal then referred to subsections 7(1) and 7(1)(e) of the FAA as well as subsections 11(2)(e) and (i) of that same Act which, in the tribunal's view, "clearly demonstrate that terms and conditions come within the purview of the Act". In particular, the tribunal quoted paragraphs 7(1)(e) and 11(2)(i) which read:
| 7. (1) The Treasury Board may act for the Queen's Privy Council for Canada on all matters relating to . . . (e) personnel management in the public service of Canada, including the determination of the terms and conditions of employment of persons employed therein;
11(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10, . . . (i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service. [emphasis added by Chairwoman Giffin] |
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7. (1) Le Conseil du Trésor peut agir au nom du Conseil privé de la Reine pour le Canada à l'égard des questions suivantes_: . . . e) la gestion du personnel de l'administration publique fédérale, notamment la détermination de ses conditions d'emploi;
11(2) Sous réserve des seules dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, le Conseil du Trésor peut, dans l'exercice de ses attributions en matière de gestion du personnel, notamment de relations entre employeur et employés dans la fonction publique_: . . . e) prévoir les primes susceptibles d'être accordées aux personnes employées dans la fonction publique pour les résultats exceptionnels, ou autres réalisations méritoires auxquels elles sont parvenues dans le cadre de leurs fonctions, pour des inventions ou pour des idées pratiques d'amélioration;
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[33] The tribunal was of the view seasonal employment is an element of such terms and conditions of employment and referred to Chapter 8 of the Treasury Board Manual which "focusses on the terms and conditions of employment for "seasonals" and said "Treasury Board can both define terms and conditions and present them for negotiation with bargaining units during the collective agreement process".
[34] The tribunal also referred to the definition of "seasonal employee" in DFO's Position Paper on Maritime Regional Crewing Policy (Draft No. 5) and the tribunal concluded at page 45:
Altogether, it is evident that authority for defining seasonal employment lies with Treasury Board's jurisdiction over terms and conditions of employment pursuant to the Financial Administration Act. The distinguishing features of indeterminate seasonal employment and those of indeterminate full-time employment is the yearly duration of the employment and is not characterized by differences in duties and responsibilities or in rates of pay. Otherwise, the employment involves the same indeterminate tenure with the Public Service and the performance of the same duties. [emphasis mine]
[35] The tribunal crystalized the applicants' argument to be "in effect that the appointments resulting from the earlier competitions for seasonal employment have lost their seasonal characteristic and have become new de facto appointments when the department offered all seasonal indeterminate employees at several levels the opportunity to have their seasonal converted to full-time indeterminate employment" indicating the applicants' reliance on Justice Tremblay-Lamer's decision in Fixman et al. v. A.G. of Canada (1995), 93 F.T.R. 312.
[36] The tribunal summarized its conclusions at page 47 of the applicants' record, volume 1:
The major difference between the instant case and Truong is that acting appointments and indeterminate appointments clearly come within the purview of the Public Service Commission, whereas "seasonal" and "full-time" employment comes within the "terms and conditions" jurisdiction of Treasury Board. No new de facto appointment is created when an indeterminate seasonal employment of an employee is changed/converted to indeterminate full-time employment. It is the same position at the same group and level. It is not a promotion: its rates of pay have not changed. The indeterminate nature of its tenure has not changed. In other words, the conversion is the exercise of an independent authority of Treasury Board over which the incumbents had no control and could not expect to have any direct control over the duration of their appointments except perhaps indirectly through the collective bargaining function. The competition notices for the various indeterminate seasonal appointments in that sense could not have been made more accurate for the applicants. Failure to apply in these competitions can not be put down to misleading advertising on the part of the department. [emphasis mine]
ANALYSIS
(a) Standard of review
[37] As is well-known, the standard of review by this Court of a decision from an administrative tribunal is governed by the functional and pragmatic test established in several cases by the Supreme Court of Canada.
[38] Applying that test to the decision at hand:
(1) there is no privative clause protecting the tribunal's decision;
(2) the tribunal has no relative expertise in the interpretation of the Act (Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86, (F.C.A.);
(3) the tribunal's determination the conversion was not an appointment is a question of law (Maslanko v. Canada (Attorney General) (1997), 132 F.T.R. 15); and
(4) the purpose of the Act is to establish the Public Service Commission and regulate appointments to the Public Service of Canada which commands no deference to the tribunal.
[39] I conclude the tribunal's decision in this case is subject to review on grounds of correctness.
[40] This standard of review has been recognized in several recent decisions of this Court (see Abercrombie, supra; Carty v. Attorney General et al, [2003] F.C. 1338 and Levy v. Canada (Attorney General), [2004] F.C. 262).
(b) Principles
[41] The Act has been interpreted by the Supreme Court of Canada, the Federal Court of Appeal and this Court in several cases yielding the following principles:
(1) The merit principle is central to all appointments to positions in the Public Service of Canada (section 10 of the Act and Public Service Alliance of Canada v. Canada (Public Service Commission), [1992] 2 F.C. 181, (T.D.) at page 185);
(2) The application of the merit principle and the right of appeal under section 21 of the Act cannot depend on how a department labels a particular staffing action (i.e. a conversion, a transfer, an assignment) or how it considers what it has done as creating or not creating a position and appointing someone to that position. "It is what the Department has done objectively as a matter of fact and not what it may have intended or understood it was doing as a matter of law that must determine the application of the merit principle and the right of appeal" (Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, and Doré v. Canada, [1987] 2 S.C.R. 503);
(3) The purpose of section 21 of the Act conferring a right of appeal on candidates who were unsuccessful in a competition is to ensure that the principle of selection by merit is observed. In Charest v. Canada (Attorney General), [1973] F.C. 1217, Justice Pratte, at page 1221, wrote:
When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle. [emphasis mine]
(4) Courts have recognized federal government departments have a margin of flexibility in making staffing decisions such as assigning a person in the Public Service to new functions on a temporary basis without giving rise to the application of the merit principle and the right of appeal (Doré, supra, at page 511) or to make minor changes in the functions of an existing position in the Public Service which the occupant of the position may be called on to perform without thereby creating a new position for which an appointment based on the selection according to merit must be made (Brault, supra, at page 501).
(5) However, beyond a certain point, rights of managers yield to the merit principle and the right of appeal. In Lucas v. Canada (Public Service Commission Appeal Board), [1987] 3 F.C. 354, Justice Heald wrote the following at page 362:
¶ 8 In my view, the learned Chairwoman erred in law in concluding that the issue herein could not be determined by deciding whether subject selection was authorized by the Public Service Employment Act or some other statute. In my view, in the circumstances of this case, the Public Service 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. [See Note 6 below] On this basis, management cannot supersede and subvert the clear intention of Parliament as expressed in the Act by a declaration, as in this case, that it was not "intended" that subject staffing action be construed as an "appointment". [emphasis mine]
(6) The merit principle "was intended to achieve more than merely the appointment of qualified persons in the Public Service. Its purpose is to find the best qualified persons from among those who are available" (Justice Le Dain, then in the Federal Court of Appeal, stated in Attorney General of Canada v. Greaves, [1982] 1 F.C. 806 at 811;
(7) Justice Le Dain, as a member of the Federal Court of Appeal, in Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 F.C. 109 at 115, made the following point;
10 The Public Service Commission has the statutory power and duty to appoint qualified persons to positions in the Public Service on the basis of merit. Selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged. Fairness may be regarded as an implied requirement of the Act in so far as it is necessarily related to selection according to merit, but appointments should not be set aside for alleged procedural irregularities when there is no reason to believe that the selection process has not been based on merit.
(8) There are no closed categories or fixed, or frozen circumstances when assessing of the merit principle has been breached. In Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272 at 280 (C.A.), Justice Mahoney rejected the closed categories concept when he dismissed an argument made on behalf of the Attorney General of Canada who suggested that Doré, supra, identified the only circumstance associated with an assignment which could offend the merit principle, is if it persists for so long as to become an appointment. He stated "[I]t seems to me that other circumstances taken together with an assignment may equally offend the merit principle. The merit principle requires the appointment of the candidate best qualified to fill a position. That is not necessarily the candidate best informed about it". He concluded the Appeal Board did not err in law "in concluding that an assignment in combination with a selection process that gave an unfair advantage to the candidate assigned to the position could compromise application of the merit principle";
(9) The case law is clear to the effect whether a particular staffing action violates the merit principle depends upon the particular circumstances. For example, in Keenan et al. v. Canada (Public Service Commission), [1989] 3 F.C. 643 at 646 (C.A.), Justice Mahoney, when considering whether a secondment was an appointment stated "the jurisprudence makes it amply clear that either may, or may not, be an appointment depending on the particular circumstances" citing Brault, Doré and Lucas, supra, to the effect these decisions only "demonstrate that the question is an arguable one very much dependent on the circumstances of each case". (See also Roberts v. Canada (Attorney General), [1999] F.C.J. No. 323 (C.A.).)
(10) In Fixman, supra, Justice Tremblay-Lamer recognized the impact which a short-term staffing appointment may have on drawing in the best person when she wrote the following last two sentences in paragraph 9 of her judgment:
Secondly, the further an extension is from the original acting appointment, the higher the chance that the best person is not occupying the position. This is the case because the most qualified person may not have applied for a short-term job, but would have considered a long term acting appointment. [emphasis mine]
(c) Application of the principles to this case
[42] I am of the opinion the tribunal's decision must be set aside as it contains a number of errors which make the decision incorrect.
[43] First, the tribunal interpreted the test summarized by Justice Dawson in Abercrombie, supra, applying to only three circumstances which would exclude from scrutiny the application of the merit principle to other staffing actions which did not fit into the set mould. The tribunal erred in doing so.
[44] In my view, appointments to the Federal Public Service in accordance with the merit principle is the essential and overarching guiding principle of job selection in that Service and yields only to specific legislative or regulatory exemptions or, as is recognized in Doré, supra, fall within the margin of flexibility accorded government departments to make assignments to meet new functions on a temporary basis or to make minor changes in the functions of an existing position.
[45] Ensuring the application of the merit principle to new situations and new circumstances such as the case at hand best reflects Parliament's intention in enacting sections 10 and 21 of the Act.
[46] Second, the tribunal did not approach the issue before it in a contextual manner. It is clear from the tribunal's decision its perspective was limited to the immediate impact of the conversion from seasonal indeterminate to full-time indeterminate in terms of functions, term, rates of pay and classification.
[47] What the tribunal failed to do was to look at the totality of the circumstances surrounding the staffing actions in the SO and SC positions in the CCG which certainly includes examining why seasonal positions were created in 1996, why competitions were held, who competed, why successful candidates declined to take up seasonal job offers and what level of jumps those who took up the seasonal job offers obtained. The record, I think, is clear on these points and suggests in this case conversion to full-time indeterminate without competition means the best person for the job may not be selected. Witness the successful applicants who did not take up the seasonal job offers.
[48] Third, the tribunal erred when it relied upon Treasury Board's undoubted authority over terms and conditions of employment to shield the conversion from the application of the merit principle. As in Lucas, supra, it is the Public Service Employment Act and not the FAA which governs and determines the rights of management and these applicants.
[49] Fourth, the tribunal erred in distinguishing Finch, supra, when it ruled the "financial benefits of conversion from indeterminate seasonal . . . to indeterminate seasonal [sic], do not fall within the « ambit » of the Supreme Court's reasoning in Brault and Dubois...". This approach reflects the notion of frozen circumstances which I have already commented upon. In addition, I see nothing in the two Supreme Court of Canada decisions which would take financial benefits out of the ambit of that Court's reasoning.
[50] Fifth, I fail to see any basis in the Act, the Regulations or the case law for the tribunal's finding an "appointment" under the Act must involve a promotion.
[51] In the result, I find the conversion from indeterminate seasonal positions to indeterminate full-time positions referred to in these reasons to be appointments within the meaning of section 21 of the Act over which the tribunal had jurisdiction and each applicant has a right of appeal.
[52] For all of these reasons, this application for judicial review is allowed with costs and an order is issued setting aside the decision of the tribunal dated May 8, 2002. The applicants' appeals are referred back to the tribunal with a direction they be considered on their merits and in a manner consistent with the reasons of this Court which include a requirement the contested conversions be filled through appointments determined through competition.
[53] I also confirm the oral order made at the start of the hearing to add Freeman Glen Stevens as a party-applicant. He had mistakenly been omitted from the style of cause.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 19, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-896-02
STYLE OF CAUSE: DAVID J. BAUR et al
v.
ATTORNEY GENERAL OF CANADA et al
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MARCH 22, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: MAY 19, 2004
APPEARANCES:
MR. DAVID YAZBECK FOR THE APPLICANTS
MS. ELIZABETH RICHARDS FOR THE RESPONDENTS
SOLICITORS ON THE RECORD:
RAVEN, ALLEN, CAMERON & BALLANTYNE FOR THE APPLICANT
OTTAWA, ONTARIO
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA